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THE UNITED STATES SUPREME COURT - Dred Scott

THE UNITED STATES SUPREME COURT


December Term, 1856

DRED SCOTT,
PLAINTIFF IN ERROR,

v.

JOHN F. A. SANDFORD .

ON A WRIT OF ERROR TO THE SUPREME COURT OF THE STATE OF


MISSOURI
DECISION REVERSED AND REMANDED TO THE CIRCUIT COURT OF
MISSOURI

COUNSEL
Mr. Blair and Mr. G. F. Curtis for the plaintiff in error
Mr. Geyer and Mr. Johnson for the defendant in error.

Mr. Chief Justice TANEY delivered the opinion of the court.


Other Justices offer concurring opinions.
Mr. Justices McLean and Curtis, dissent from the opinion of the court.

THIS case was brought up, by writ of error, from the Circuit Court of the United States
for the district of Missouri.

It was an action of trespass vi et armis instituted in the Circuit Court by Scott against
Sandford.

Prior to the institution of the present suit, an action was brought by Scott for his
freedom in the Circuit Court of St. Louis county, (State court,) where there was a
verdict and judgment in his favor. On a writ of error to the Supreme Court of the State,
the judgment below was reversed, and the case remanded to the Circuit Court, where it
was continued to await the decision of the case now in question.

The declaration of Scott contained three counts: one, that Sandford had assaulted the
plaintiff; one, that he had assaulted Harriet Scott, his wife; and one, that he had
assaulted Eliza Scott and Lizzie Scott, his children.

Sandford appeared, and filed the following plea:

DRED SCOTT
v.
JOHN F. A. SANDFORD .

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Plea to the Jurisdiction of the Court.

I.

1. Upon a writ of error to a Circuit Court of the United States, the transcript of the
record of all the proceedings in the case is brought before this court, and is open to its
inspection and revision.

2. When a plea to the jurisdiction, in abatement, is overruled by the court upon


demurrer, and the defendant pleads in bar, and upon these pleas the final judgment of
the court is in his favor--if the plaintiff brings a writ of error, the judgment of the court
upon the plea in abatement is before this court, although it was in favor of the
plaintiff--and if the court erred in overruling it, the judgment must be reversed, and a
mandate issued to the Circuit Court to dismiss the case for want of jurisdiction.

3. In the Circuit Courts of the United States, the record must show that the case is one
in which, by the Constitution and laws of the United States, the court had jurisdiction --
and if this does not appear, and the court gives judgment either for plaintiff or
defendant, it is error, and the judgment must be reversed by this court -- and the parties
cannot by consent waive the objection to the jurisdiction of the Circuit Court.

4. A free negro of the African race, whose ancestors were brought to this country and
sold as slaves, is not a 'citizen' within the meaning of the Constitution of the United
States.

5. When the Constitution was adopted, they were not regarded in any of the States as
members of the community which constituted the State, and were not numbered among
its 'people or citizens.' Consequently, the special rights and immunities guaranteed to
citizens do not apply to them. And not being 'citizens' within the meaning of the
Constitution, they are not entitled to sue in that character in a court of the United
States, and the Circuit Court has not jurisdiction in such a suit.

6. The only two clauses in the Constitution which point to this race, treat them as
persons whom it was morally lawful to deal in as articles of property and to hold as
slaves.

7. Since the adoption of the Constitution of the United States, no State can by any
subsequent law make a foreigner or any other description of persons citizens of the
United States, nor entitle them to the rights and privileges secured to citizens by that
instrument.

8. A State, by its laws passed since the adoption of the Constitution, may put a
foreigner or any other description of persons upon a footing with its own citizens, as to
all the rights and privileges enjoyed by them within its dominion and by its laws. But
that will not make him a citizen of the United States, nor entitle him to sue in its courts,
nor to any of the privileges and immunities of a citizen in another State.

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9. The change in public opinion and feeling in relation to the African race, which has
taken place since the adoption of the Constitution, cannot change its construction and
meaning, and it must be construed and administered now according to its true meaning
and intention when it was formed and adopted.

10. The plaintiff having admitted, by his demurrer to the plea in abatement, that his
ancestors were imported from Africa and sold as slaves, he is not a citizen of the State
of Missouri according to the Constitution of the United States, and was not entitled to
sue in that character in the Circuit Court.

11. This being the case, the judgment of the court below, in favor of the plaintiff on the
plea in abatement, was erroneous.

II.

1. But if the plea in abatement is not brought up by this writ of error, the objection to
the citizenship of the plaintiff is still apparent on the record, as he himself, in making
out his case, states that he is of African descent, was born a slave, and claims that he
and his family became entitled to freedom by being taken, by their owner, to reside in a
Territory where slavery is prohibited by act of Congress--and that, in addition to this
claim, he himself became entitled to freedom by being taken to Rock Island, in the State
of Illinois -- and being free when he was brought back to Missouri, he was by the laws
of that State a citizen.

2. If, therefore, the facts he states do not give him or his family a right to freedom, the
plaintiff is still a slave, and not entitled to sue as a 'citizen,' and the judgment of the
Circuit Court was erroneous on that ground also, without any reference to the plea in
abatement.

3. The Circuit Court can give no judgment for plaintiff or defendant in a case where it
has not jurisdiction, no matter whether there be a plea in abatement or not. And unless
it appears upon the face of the record, when brought here by writ of error, that the
Circuit Court had jurisdiction, the judgment must be reversed.

The case of Capron v. Van Noorden (2 Cranch, 126) examined, and the principles
thereby decided, reaffirmed.

4. When the record, as brought here by writ of error, does not show that the Circuit
Court had jurisdiction, this court has jurisdiction to revise and correct the error, like any
other error in the court below. It does not and cannot dismiss the case for want of
jurisdiction here; for that would leave the erroneous judgment of the court below in full
force, and the party injured without remedy. But it must reverse the judgment, and, as in
any other case of reversal, send a mandate to the Circuit Court to conform its judgment
to the opinion of this court.

5. The difference of the jurisdiction in this court in the cases of writs of error to State

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courts and to Circuit Courts of the United States, pointed out; and the mistakes made as
to the jurisdiction of this court in the latter case, by confounding it with its limited
jurisdiction in the former.

6. If the court reverses a judgment upon the ground that it appears by a particular part of
the record that the Circuit Court had not jurisdiction, it does not take away the
jurisdiction of this court to examine into and correct, by a reversal of the judgment, and
other errors, either as to the jurisdiction or any other matter, where it appears from other
parts of the record that the Circuit Court had fallen into error. On the contrary, it is the
daily and familiar practice of this court to reverse on several grounds, where more than
one error appears to have been committed. And the error of a Circuit Court in its
jurisdiction stands on the same ground, and is to be treated in the same manner as any
other error upon which its judgment is founded.

7. The decision, therefore, that the judgment of the Circuit Court upon the plea in
abatement is erroneous, is no reason why the alleged error apparent in the exception
should not also be examined, and the judgment reversed on that ground also, if it
discloses a want of jurisdiction in the Circuit Court.

8. It is often the duty of this court, after having decided that a particular decision of the
Circuit Court was erroneous, to examine into other alleged errors, and to correct them if
they are found to exist. And this has been uniformly done by this court, when the
questions are in any degree connected with the controversy, and the silence of the court
might create doubts which would lead to further and useless litigation.

III.

1. The facts upon which the plaintiff relies, did not give him his freedom, and make him
a citizen of Missouri.

2. The clause in the Constitution authorizing Congress to make all needful rules and
regulations for the government of the territory and other property of the United States,
applies only to territory within the chartered limits of some one of the States when they
were colonies of Great Britain, and which was surrendered by the British Government
to the old Confederation of the States, in the treaty of peace. It does not apply to
territory acquired by the present Federal Government, by treaty or conquest, from a
foreign nation. The case of the American and Ocean Insurance Companies v. Canter (1
Peters, 511) referred to and examined, showing that the decision in this case is not in
conflict with that opinion, and that the court did not, in the case referred to, decide
upon the construction of the clause of the Constitution above mentioned, because the
case before them did not make it necessary to decide the question.

3. The United States, under the present Constitution, cannot acquire territory to be held
as a colony, to be governed at its will and pleasure. But it may acquire territory which,
at the time, has not a population that fits it to become a State, and may govern it as a
Territory until it has a population which, in the judgment of Congress, entitles it to be

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admitted as a State of the Union.

4. During the time it remains a Territory, Congress may legislate over it within the
scope of its constitutional powers in relation to citizens of the United States -- and may
establish a Territorial Government--and the form of this local Government must be
regulated by the discretion of Congress--but with powers not exceeding those which
Congress itself, by the Constitution, is authorized to exercise over citizens of the United
States, in respect to their rights of persons or rights of property.

IV.

1. The territory thus acquired, is acquired by the people of the United States for their
common and equal benefit, through their agent and trustee, the Federal Government.
Congress can exercise no power over the rights of persons or property of a citizen in the
Territory which is prohibited by the Constitution. The Government and the citizen,
whenever the Territory is open to settlement, both enter it with their respective rights
defined and limited by the Constitution.

2. Congress have no right to prohibit the citizens of any particular State or States from
taking up their home there, while it permits citizens of other States to do so. Nor has it
a right to give privileges to one class of citizens which it refuses to another. The
territory is acquired for their equal and common benefit--and if open to any, it must be
open to all upon equal and the same terms.

3. Every citizen has a right to take with him into the Territory any article of property
which the Constitution of the United States recognises as property.

4. The Constitution of the United States recognises slaves as property, and pledges the
Federal Government to protect it. And Congress cannot exercise any more authority
over property of that description than it may constitutionally exercise over property of
any other kind.

5. The act of Congress, therefore, prohibiting a citizen of the United States from taking
with him his slaves when he removes to the Territory in question to reside, is an
exercise of authority over private property which is not warranted by the Constitution --
and the removal of the plaintiff, by his owner, to that Territory, gave him no title to
freedom.

V.

1. The plaintiff himself acquired no title to freedom by being taken, by his owner, to
Rock Island, in Illinois, and brought back to Missouri. This court has heretofore decided
that the status or condition of a person of African descent depended on the laws of the
State in which he resided.

2. It has been settled by the decisions of the highest court in Missouri, that, by the laws

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of that State, a slave does not become entitled to his freedom, where the owner takes
him to reside in a State where slavery is not permitted, and afterwards brings him back
to Missouri.

Conclusion. It follows that it is apparent upon the record that the court below erred in
its judgment on the plea in abatement, and also erred in giving judgment for the
defendant, when the exception shows that the plaintiff was not a citizen of the United
States. And as the Circuit Court had no jurisdiction, either in the case stated in the plea
in abatement, or in the one stated in the exception, its judgment in favor of the
defendant is erroneous, and must be reversed.

APRIL TERM, 1854.

And the said John F. A. Sandford, in his own proper person, comes and says that this
court ought not to have or take further cognizance of the action aforesaid, because he
says that said cause of action, and each and every of them, (if any such have accrued to
the said DRED SCOTT,) accrued to the said DRED SCOTT out of the jurisdiction of
this court, and exclusively within the jurisdiction of the courts of the State of Missouri,
for that, to wit: the said plaintiff, DRED SCOTT, is not a citizen of the State of
Missouri, as alleged in his declaration, because he is a negro of African descent; his
ancestors were of pure African blood, and were brought into this country and sold as
negro slaves, and this the said Sandford is ready to verify.

Wherefore, he prays judgment whether this court can or will take further cognizance of
the action aforesaid.

JOHN F. A. SANDFORD .

To this plea there was a demurrer in the usual form, which was argued in April, 1854,
when the court gave judgment that the demurrer should be sustained.

In May, 1854, the defendant, in pursuance of an agreement between counsel, and with
the leave of the court, pleaded in bar of the action:

1. Not guilty.

2. That the plaintiff was a negro slave, the lawful property of the defendant, and, as
such, the defendant gently laid his hands upon him, and thereby had only restrained him,
as the defendant had a right to do.

3. That with respect to the wife and daughters of the plaintiff, in the second and third
counts of the declaration mentioned, the defendant had, as to them, only acted in the
same manner, and in virtue of the same legal right.

In the first of these pleas, the plaintiff joined issue; and to the second and third, filed
replications alleging that the defendant, of his own wrong and without the cause in his

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second and third pleas alleged, committed the trespasses, &c.

The counsel then filed the following agreed statement of facts, viz: In the year 1834, the
plaintiff was a negro slave belonging to Dr. Emerson, who was a surgeon in the army of
the United States. In that year, 1834, said Dr. Emerson took the plaintiff from the State
of Missouri to the military post at Rock Island, in the State of Illinois, and held him
there as a slave until the month of April or May, 1836. At the time last mentioned, said
Dr. Emerson removed the plaintiff from said military post at Rock Island to the military
post at Fort Snelling, situate on the west bank of the Mississippi river, in the Territory
known as Upper Louisiana, acquired by the United States of France, and situate north
of the latitude of thirty-six degrees thirty minutes north, and north of the State of
Missouri. Said Dr. Emerson held the plaintiff in slavery at said Fort Snelling, from said
last-mentioned date until the year 1838.

In the year 1835, Harriet, who is named in the second count of the plaintiff's
declaration, was the negro slave of Major Taliaferro, who belonged to the army of the
United States. In that year, 1835, said Major Taliaferro took said Harriet to said Fort
Snelling, a military post, situated as hereinbefore stated, and kept her there as a slave
until the year 1836, and then sold and delivered her as a slave at said Fort Snelling unto
the said Dr. Emerson hereinbefore named. Said Dr. Emerson held said Harriet in slavery
at said Fort Snelling until the year 1838.

In the year 1836, the plaintiff and said Harriet at said Fort Snelling, with the consent of
said Dr. Emerson, who then claimed to be their master and owner, intermarried, and
took each other for husband and wife. Eliza and Lizzie, named in the third count of the
plaintiff's declaration, are the fruit of that marriage. Eliza is about fourteen years old,
and was born on board the steamboat Gipsey, north of the north line of the State of
Missouri, and upon the river Mississippi. Lizzie is about seven years old, and was born
in the State of Missouri, at the military post called Jefferson Barracks.

In the year 1838, said Dr. Emerson removed the plaintiff and said Harriet and their said
daughter Eliza, from said Fort Snelling to the State of Missouri, where they have ever
since resided.

Before the commencement of this suit, said Dr. Emerson sold and conveyed the
plaintiff, said Harriet, Eliza, and Lizzie, to the defendant, as slaves, and the defendant
has ever since claimed to hold them and each of them as slaves.

At the times mentioned in the plaintiff's declaration, the defendant, claiming to be


owner as aforesaid, laid his hands upon said plaintiff, Harriet, Eliza, and Lizzie, and
imprisoned them, doing in this respect, however, no more than what he might lawfully
do if they were of right his slaves at such times.

Further proof may be given on the trial for either party.

It is agreed that DRED SCOTT brought suit for his freedom in the Circuit Court of St.

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Louis county; that there was a verdict and judgment in his favor; that on a writ of error
to the Supreme Court, the judgment below was reversed, and the same remanded to the
Circuit Court, where it has been continued to await the decision of this case.

In May, 1854, the cause went before a jury, who found the following verdict, viz: As to
the first issue joined in this case, we of the jury find the defendant not guilty; and as to
the issue secondly above joined, we of the jury find that before and at the time when,
&c., in the first count mentioned, the said DRED SCOTT was a negro slave, the lawful
property of the defendant; and as to the issue thirdly above joined, we, the jury, find that
before and at the time when, &c., in the second and third counts mentioned, the said
Harriet, wife of said DRED SCOTT, and Eliza and Lizzie, the daughters of the said
DRED SCOTT, were negro slaves, the lawful property of the defendant.

Whereupon, the court gave judgment for the defendant.

After an ineffectual motion for a new trial, the plaintiff filed the following bill of
exceptions.

On the trial of this cause by the jury, the plaintiff, to maintain the issues on his part, read
to the jury the following agreed statement of facts, (see agreement above.) No further
testimony was given to the jury by either party.

Thereupon the plaintiff moved the court to give to the jury the following instruction,
viz:

'That, upon the facts agreed to by the parties, they ought to find for the plaintiff. The
court refused to give such instruction to the jury, and the plaintiff, to such refusal, then
and there duly excepted.' The court then gave the following instruction to the jury, on
motion of the defendant:

'The jury are instructed, that upon the facts in this case, the law is with the defendant.'
The plaintiff excepted to this instruction.

Upon these exceptions, the case came up to this court.

It was argued at December term, 1855, and ordered to be reargued at the present term.

It was now argued by Mr. Blair and Mr. G. F. Curtis for the plaintiff in error, and by Mr.
Geyer and Mr. Johnson for the defendant in error.

The reporter regrets that want of room will not allow him to give the arguments of
counsel; but he regrets it the less, because the subject is thoroughly examined in the
opinion of the court, the opinions of the concurring judges, and the opinions of the
judges who dissented from the judgment of the court.

Mr. Chief Justice TANEY delivered the opinion of the court.

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This case has been twice argued. After the argument at the last term, differences of
opinion were found to exist among the members of the court; and as the questions in
controversy are of the highest importance, and the court was at that time much pressed
by the ordinary business of the term, it was deemed advisable to continue the case, and
direct a re-argument on some of the points, in order that we might have an opportunity
of giving to the whole subject a more deliberate *400 consideration. It has accordingly
been again argued by counsel, and considered by the court; and I now proceed to deliver
its opinion.

There are two leading questions presented by the record: 1. Had the Circuit Court of the
United States jurisdiction to hear and determine the case between these parties? And

2. If it had jurisdiction, is the judgment it has given erroneous or not?

The plaintiff in error, who was also the plaintiff in the court below, was, with his wife
and children, held as slaves by the defendant, in the State of Missouri; and he brought
this action in the Circuit Court of the United States for that district, to assert the title of
himself and his family to freedom.

The declaration is in the form usually adopted in that State to try questions of this
description, and contains the averment necessary to give the court jurisdiction; that he
and the defendant are citizens of different States; that is, that he is a citizen of Missouri,
and the defendant a citizen of New York.

The defendant pleaded in abatement to the jurisdiction of the court, that the plaintiff
was not a citizen of the State of Missouri, as alleged in his declaration, being a negro of
African descent, whose ancestors were of pure African blood, and who were brought
into this country and sold as slaves.

To this plea the plaintiff demurred, and the defendant joined in demurrer.

The court overruled the plea, and gave judgment that the defendant should answer over.
And he thereupon put in sundry pleas in bar, upon which issues were joined; and at the
trial the verdict and judgment were in his favor.

Whereupon the plaintiff brought this writ of error.

Before we speak of the pleas in bar, it will be proper to dispose of the questions which
have arisen on the plea in abatement.

That plea denies the right of the plaintiff to sue in a court of the United States, for the
reasons therein stated.

If the question raised by it is legally before us, and the court should be of opinion that
the facts stated in it disqualify the plaintiff from becoming a citizen, in the sense in

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which that word is used in the Constitution of the United States, then the judgment of
the Circuit Court is erroneous, and must be reversed.

It is suggested, however, that this plea is not before us; and that as the judgment in the
court below on this plea was in favor of the plaintiff, he does not seek to reverse it, or
bring it before the court for revision by his writ of error; and also that the defendant
waived this defence by pleading over, and thereby admitted the jurisdiction of the court.

But, in making this objection, we think the peculiar and limited jurisdiction of courts of
the United States has not been adverted to. This peculiar and limited jurisdiction has
made it necessary, in these courts, to adopt different rules and principles of pleading, so
far as jurisdiction is concerned, from those which regulate courts of common law in
England, and in the different States of the Union which have adopted the common-law
rules.

In these last-mentioned courts, where their character and rank are analogous to that of a
Circuit Court of the United States; in other words, where they are what the law terms
courts of general jurisdiction; they are presumed to have jurisdiction, unless the contrary
appears. No averment in the pleadings of the plaintiff is necessary, in order to give
jurisdiction. If the defendant objects to it, he must plead it specially, and unless the fact
on which he relies is found to be true by a jury, or admitted to be true by the plaintiff,
the jurisdiction cannot be disputed in an appellate court.

Now, it is not necessary to inquire whether in courts of that description a party who
pleads over in bar, when a plea to the jurisdiction has been ruled against him, does or
does not waive his plea; nor whether upon a judgment in his favor on the pleas in bar,
and a writ of error brought by the plaintiff, the question upon the plea in abatement
would be open for revision in the appellate court. Cases that may have been decided in
such courts, or rules that may have been laid down by common-law pleaders, can have
no influence in the decision in this court. Because, under the Constitution and laws of
the United States, the rules which govern the pleadings in its courts, in questions of
jurisdiction, stand on different principles and are regulated by different laws This
difference arises, as we have said, from the peculiar character of the Government of the
United States. For although it is sovereign and supreme in its appropriate sphere of
action, yet it does not possess all the powers which usually belong to the sovereignty of
a nation. Certain specified powers, enumerated in the Constitution, have been conferred
upon it; and neither the legislative, executive, nor judicial departments of the
Government can lawfully exercise any authority beyond the limits marked out by the
Constitution. And in regulating the judicial department, the cases in which the courts of
the United States shall have jurisdiction are particularly and specifically enumerated and
defined; and they are not authorized to take cognizance of any case which does not
come within the description therein specified. Hence, when a plaintiff sues in a court of
the United States, it is necessary that he should *402 show, in his pleading, that the suit
he brings is within the jurisdiction of the court, and that he is entitled to sue there. And
if he omits to do this, and should, by any oversight of the Circuit Court, obtain a
judgment in his favor, the judgment would be reversed in the appellate court for want of

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jurisdiction in the court below. The jurisdiction would not be presumed, as in the case
of a common-law English or State court, unless the contrary appeared. But the record,
when it comes before the appellate court, must show, affirmatively, that the inferior
court had authority, under the Constitution, to hear and determine the case. And if the
plaintiff claims a right to sue in a Circuit Court of the United States, under that
provision of the Constitution which gives jurisdiction in controversies between citizens
of different States, he must distinctly aver in his pleading that they are citizens of
different States; and he cannot maintain his suit without showing that fact in the
pleadings.

This point was decided in the case of Bingham v. Cabot, (in 3 Dall., 382,) and ever
since adhered to by the court. And in Jackson v. Ashton, (8 Pet., 148,) it was held that
the objection to which it was open could not be waived by the opposite party, because
consent of parties could not give jurisdiction.

It is needless to accumulate cases on this subject. Those already referred to, and the
cases of Capron v. Van Noorden, (in 2 Cr., 126,) and Montalet v. Murray, (4 Cr., 46,)
are sufficient to show the rule of which we have spoken.

The case of Capron v. Van Noorden strikingly illustrates the difference between a
common-law court and a court of the United States.

If, however, the fact of citizenship is averred in the declaration, and the defendant does
not deny it, and put it in issue by plea in abatement, he cannot offer evidence at the trial
to disprove it, and consequently cannot avail himself of the objection in the appellate
court, unless the defect should be apparent in some other part of the record. For if there
is no plea in abatement, and the want of jurisdiction does not appear in any other part of
the transcript brought up by the writ of error, the undisputed averment of citizenship in
the declaration must be taken in this court to be true. In this case, the citizenship is
averred, but it is denied by the defendant in the manner required by the rules of
pleading, and the fact upon which the denial is based is admitted by the demurrer. And,
if the plea and demurrer, and judgment of the court below upon it, are before us upon
this record, the question to be decided is, whether the facts stated in the plea are
sufficient to show that the plaintiff is not entitled to sue as a citizen in a court of the
United States.

We think they are before us. The plea in abatement and the judgment of the court upon
it, are a part of the judicial proceedings in the Circuit Court, and are there recorded as
such; and a writ of error always brings up to the superior court the whole record of the
proceedings in the court below. And in the case of the United States v. Smith, (11
Wheat., 172,) this court said, that the case being brought up by writ of error, the whole
record was under the consideration of this court. And this being the case in the present
instance, the plea in abatement is necessarily under consideration; and it becomes,
therefore, our duty to decide whether the facts stated in the plea are or are not sufficient
to show that the plaintiff is not entitled to sue as a citizen in a court of the United
States.

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This is certainly a very serious question, and one that now for the first time has been
brought for decision before this court. But it is brought here by those who have a right
to bring it, and it is our duty to meet it and decide it.

The question is simply this: Can a negro, whose ancestors were imported into this
country, and sold as slaves, become a member of the political community formed and
brought into existence by the Constitution of the United States, and as such become
entitled to all the rights, and privileges, and immunities, guarantied by that instrument
to the citizen? One of which rights is the privilege of suing in a court of the United
States in the cases specified in the Constitution.

It will be observed, that the plea applies to that class of persons only whose ancestors
were negroes of the African race, and imported into this country, and sold and held as
slaves. The only matter in issue before the court, therefore, is, whether the descendants
of such slaves, when they shall be emancipated, or who are born of parents who had
become free before their birth, are citizens of a State, in the sense in which the word
citizen is used in the Constitution of the United States. And this being the only matter
in dispute on the pleadings, the court must be understood as speaking in this opinion of
that class only, that is, of those persons who are the descendants of Africans who were
imported into this country, and sold as slaves.

The situation of this population was altogether unlike that of the Indian race. The latter,
it is true, formed no part of the colonial communities, and never amalgamated with
them in social connections or in government. But although they were uncivilized, they
were yet a free and independent people, associated together in nations or tribes, and
governed by their own laws.

Many of these political communities were situated in territories to which the white race
claimed the ultimate right of dominion. But that claim was acknowledged to be subject
to the right of the Indians to occupy it as long as they thought proper, and neither the
English nor colonial Governments claimed or exercised any dominion over the tribe or
nation by whom it was occupied, nor claimed the right to the possession of the territory,
until the tribe or nation consented to cede it. These Indian Governments were regarded
and treated as foreign Governments, as much so as if an ocean had separated the red
man from the white; and their freedom has constantly been acknowledged, from the
time of the first emigration to the English colonies to the present day, by the different
Governments which succeeded each other. Treaties have been negotiated with them,
and their alliance sought for in war; and the people who compose these Indian political
communities have always been treated as foreigners not living under our Government. It
is true that the course of events has brought the Indian tribes within the limits of the
United States under subjection to the white race; and it has been found necessary, for
their sake as well as our own, to regard them as in a state of pupilage, and to legislate to
a certain extent over them and the territory they occupy. But they may, without doubt,
like the subjects of any other foreign Government, be naturalized by the authority of
Congress, and become citizens of a State, and of the United States; and if an individual
should leave his nation or tribe, and take up his abode among the white population, he

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would be entitled to all the rights and privileges which would belong to an emigrant
from any other foreign people.

We proceed to examine the case as presented by the pleadings.

The words 'people of the United States' and 'citizens' are synonymous terms, and mean
the same thing. They both describe the political body who, according to our republican
institutions, form the sovereignty, and who hold the power and conduct the
Government through their representatives. They are what we familiarly call the
'sovereign people, and every citizen is one of this people, and a constituent member of
this sovereignty. The question before us is, whether the class of persons described in the
plea in abatement compose a portion of this people, and are constituent members of this
sovereignty? We think they are not, and that they are not included, and were not
intended to be included, under the word 'citizens' in the Constitution, and can therefore
claim none of the rights and privileges which that instrument provides for and secures to
citizens of the United States. On the contrary, they were at that time considered as a
subordinate and inferior class of beings, who had been subjugated by the dominant race,
and, whether emancipated or not, yet remained subject to their authority, and had no
rights or privileges but such as those who held the power and the Government might
choose to grant them.

It is not the province of the court to decide upon the justice or injustice, the policy or
impolicy, of these laws. The decision of that question belonged to the political or
law-making power; to those who formed the sovereignty and framed the Constitution.
The duty of the court is, to interpret the instrument they have framed, with the best
lights we can obtain on the subject, and to administer it as we find it, according to its
true intent and meaning when it was adopted.

In discussing this question, we must not confound the rights of citizenship which a
State may confer within its own limits, and the rights of citizenship as a member of the
Union. It does not by any means follow, because he has all the rights and privileges of a
citizen of a State, that he must be a citizen of the United States. He may have all of the
rights and privileges of the citizen of a State, and yet not be entitled to the rights and
privileges of a citizen in any other State. For, previous to the adoption of the
Constitution of the United States, every State had the undoubted right to confer on
whomsoever it pleased the character of citizen, and to endow him with all its rights. But
this character of course was confined to the boundaries of the State, and gave him no
rights or privileges in other States beyond those secured to him by the laws of nations
and the comity of States. Nor have the several States surrendered the power of
conferring these rights and privileges by adopting the Constitution of the United States.
Each State may still confer them upon an alien, or any one it thinks proper, or upon any
class or description of persons; yet he would not be a citizen in the sense in which that
word is used in the Constitution of the United States, nor entitled to sue as such in one
of its courts, nor to the privileges and immunities of a citizen in the other States. The
rights which he would acquire would be restricted to the State which gave them. The
Constitution has conferred on Congress the right to establish an uniform rule of

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naturalization, and this right is evidently exclusive, and has always been held by this
court to be so. Consequently, no State, since the adoption of the Constitution, can by
naturalizing an alien invest him with the rights and privileges secured to a citizen of a
State under the Federal Government, although, so far as the State alone was concerned,
he would undoubtedly be entitled to the rights of a citizen, and clothed with all the
rights and immunities which the Constitution and laws of the State attached to that
character.

It is very clear, therefore, that no State can, by any act or law of its own, passed since
the adoption of the Constitution, introduce a new member into the political community
created by the Constitution of the United States. It cannot make him a member of this
community by making him a member of its own. And for the same reason it cannot
introduce any person, or description of persons, who were not intended to be embraced
in this new political family, which the Constitution brought into existence, but were
intended to be excluded from it.

The question then arises, whether the provisions of the Constitution, in relation to the
personal rights and privileges to which the citizen of a State should be entitled,
embraced the negro African race, at that time in this country, or who might afterwards
be imported, who had then or should afterwards be made free in any State; and to put it
in the power of a single State to make him a citizen of the United States, and endue him
with the full rights of citizenship in every other State without their consent? Does the
Constitution of the United States act upon him whenever he shall be made free under
the laws of a State, and raised there to the rank of a citizen, and immediately clothe him
with all the privileges of a citizen in every other State, and in its own courts?

The court think the affirmative of these propositions cannot be maintained.

And if it cannot, the plaintiff in error could not be a citizen of the State of Missouri,
within the meaning of the Constitution of the United States, and, consequently, was not
entitled to sue in its courts.

It is true, every person, and every class and description of persons, who were at the time
of the adoption of the Constitution recognised as citizens in the several States, became
also citizens of this new political body; but none other; it was formed by them, and for
them and their posterity, but for no one else. And the personal rights and privileges
guarantied to citizens of this new sovereignty were intended to embrace those only who
were then members of the several State communities, or who should afterwards by
birthright or otherwise become members, according to the provisions of the
Constitution and the principles on which it was founded. It was the union of those who
were at that time members of distinct and separate political communities into one
political family, whose power, for certain specified purposes, was to extend over the
whole territory of the United States. And it gave to each citizen rights and privileges
outside of his State which he did not before possess, and placed him in every other State
upon a perfect equality with its own citizens as to rights of person and rights of
property; it made him a citizen of the United States.

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It becomes necessary, therefore, to determine who were citizens of the several States
when the Constitution was adopted. And in order to do this, we must recur to the
Governments and institutions of the thirteen colonies, when they separated from Great
Britain and formed new sovereignties, and took their places in the family of independent
nations. We must inquire who, at that time, were recognised as the people or citizens of
a State, whose rights and liberties had been outraged by the English Government; and
who declared their independence, and assumed the powers of Government to defend
their rights by force of arms.

In the opinion of the court, the legislation and histories of the times, and the language
used in the Declaration of Independence, show, that neither the class of persons who
had been imported as slaves, nor their descendants, whether they had become free or
not, were then acknowledged as a part of the people, nor intended to be included in the
general words used in that memorable instrument.

It is difficult at this day to realize the state of public opinion in relation to that
unfortunate race, which prevailed in the civilized and enlightened portions of the world
at the time of the Declaration of Independence, and when the Constitution of the
United States was framed and adopted. But the public history of every European nation
displays it in a manner too plain to be mistaken.

They had for more than a century before been regarded as beings of an inferior order,
and altogether unfit to associate with the white race, either in social or political
relations; and so far inferior, that they had no rights which the white man was bound to
respect; and that the negro might justly and lawfully be reduced to slavery for his
benefit. He was bought and sold, and treated as an ordinary article of merchandise and
traffic, whenever a profit could be made by it. This opinion was at that time fixed and
universal in the civilized portion of the white race. It was regarded as an axiom in
morals as well as in politics, which no one thought of disputing, or supposed to be open
to dispute; and men in every grade and position in society daily and habitually acted
upon it in their private pursuits, as well as in matters of public concern, without
doubting for a moment the correctness of this opinion.

And in no nation was this opinion more firmly fixed or more uniformly acted upon than
by the English Government and English people. They not only seized them on the coast
of Africa, and sold them or held them in slavery for their own use; but they took them as
ordinary articles of merchandise to every country where they could make a profit on
them, and were far more extensively engaged in this commerce than any other nation in
the world.

The opinion thus entertained and acted upon in England was naturally impressed upon
the colonies they founded on this side of the Atlantic. And, accordingly, a negro of the
African race was regarded by them as an article of property, and held, and bought and
sold as such, in every one of the thirteen colonies which united in the Declaration of
Independence, and afterwards formed the Constitution of the United States. The slaves
were more or less numerous in the different colonies, as slave labor was found more or

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less profitable. But no one seems to have doubted the correctness of the prevailing
opinion of the time.

The legislation of the different colonies furnishes positive and indisputable proof of this
fact.

It would be tedious, in this opinion, to enumerate the various laws they passed upon this
subject. It will be sufficient, as a sample of the legislation which then generally
prevailed throughout the British colonies, to give the laws of two of them; one being
still a large slaveholding State, and the other the first State in which slavery ceased to
exist.

The province of Maryland, in 1717, (ch. 13, s. 5,) passed a law declaring 'that if any free
negro or mulatto intermarry with any white woman, or if any white man shall intermarry
with any negro or mulatto woman, such negro or mulatto shall become a slave during
life, excepting mulattoes born of white women, who, for such intermarriage, shall only
become servants for seven years, to be disposed of as the justices of the county court,
where such marriage so happens, shall think fit; to be applied by them towards the
support of a public school within the said county. And any white man or white woman
who shall intermarry as aforesaid, with any negro or mulatto, such white man or white
woman shall become servants during the term of seven years, and shall be disposed of
by the justices as aforesaid, and be applied to the uses aforesaid.

The other colonial law to which we refer was passed by Massachusetts in 1705, (chap.
6.) It is entitled An act for the better preventing of a spurious and mixed issue,' &c.; and
it provides, that 'if any negro or mulatto shall presume to smite or strike any person of
the English or other Christian nation, such negro or mulatto shall be severely whipped,
at tthe discretion of the justices before whom the offender shall be convicted.

And 'that none of her Majesty's English or Scottish subjects, nor of any other Christian
nation, within this province, shall contract matrimony with any negro or mulatto; nor
shall any person, duly authorized to solemnize marriage, presume to join any such in
marriage, on pain of forfeiting the sum of fifty pounds; one moiety thereof to her
Majesty, for and towards the support of the Government within this province, and the
other moiety to him or them that shall inform and sue for the same, in any of her
Majesty's courts of record within the province, by bill, plaint, or information.

We give both of these laws in the words used by the respective legislative bodies,
because the language in which they are framed, as well as the provisions contained in
them, show, too plainly to be misunderstood, the degraded condition of this unhappy
race. They were still in force when the Revolution began, and are a faithful index to the
state of feeling towards the class of persons of whom they speak, and of the position
they occupied throughout the thirteen colonies, in the eyes and thoughts of the men
who framed the Declaration of Independence and established the State Constitutions
and Governments. They show that a perpetual and impassable barrier was intended to
be erected between the white race and the one which they had reduced to slavery, and

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governed as subjects with absolute and despotic power, and which they then looked
upon as so far below them in the scale of created beings, that intermarriages between
white persons and negroes or mulattoes were regarded as unnatural and immoral, and
punished as crimes, not only in the parties, but in the person who joined them in
marriage. And no distinction in this respect was made between the free negro or mulatto
and the slave, but this stigma, of the deepest degradation, was fixed upon the whole
race.

We refer to these historical facts for the purpose of showing the fixed opinions
concerning that race, upon which the statesmen of that day spoke and acted. It is
necessary to do this, in order to determine whether the general terms used in the
Constitution of the United States, as to the rights of man and the rights of the people,
was intended to include them, or to give to them or their posterity the benefit of any of
its provisions.

The language of the Declaration of Independence is equally conclusive: It begins by


declaring that, 'when in the course of human events it becomes necessary for one people
to dissolve the political bands which have connected them with another, and to assume
among the powers of the earth the separate and equal station to which the laws of
nature and nature's God entitle them, a decent respect for the opinions of mankind
requires that they should declare the causes which impel them to the separation.' It then
proceeds to say: 'We hold these truths to be self-evident: that all men are created equal;
that they are endowed by their Creator with certain unalienable rights; that among them
is life, liberty, and the pursuit of happiness; that to secure these rights, Governments are
instituted, deriving their just powers from the consent of the governed.

The general words above quoted would seem to embrace the whole human family, and
if they were used in a similar instrument at this day would be so understood. But it is
too clear for dispute, that the enslaved African race were not intended to be included,
and formed no part of the people who framed and adopted this declaration; for if the
language, as understood in that day, would embrace them, the conduct of the
distinguished men who framed the Declaration of Independence would have been
utterly and flagrantly inconsistent with the principles they asserted; and instead of the
sympathy of mankind, to which they so confidently appealed, they would have deserved
and received universal rebuke and reprobation.

Yet the men who framed this declaration were great men--high in literary acquirements
-- high in their sense of honor, and incapable of asserting principles inconsistent with
those on which they were acting. They perfectly understood the meaning of the
language they used, and how it would be understood by others; and they knew that it
would not in any part of the civilized world be supposed to embrace the negro race,
which, by common consent, had been excluded from civilized Governments and the
family of nations, and doomed to slavery. They spoke and acted according to the then
established doctrines and principles, and in the ordinary language of the day, and no one
misunderstood them. The unhappy black race were separated from the white by
indelible marks, and laws long before established, and were never thought of or spoken

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of except as property, and when the claims of the owner or the profit of the trader were
supposed to need protection.

This state of public opinion had undergone no change when the Constitution was
adopted, as is equally evident from its provisions and language.

The brief preamble sets forth by whom it was formed, for what purposes, and for whose
benefit and protection. It declares that it is formed by the people of the United States;
that is to say, by those who were members of the different political communities in the
several States; and its great object is declared to be to secure the blessings of liberty to
themselves and their posterity. It speaks in general terms of the people of the United
States, and of citizens of the several States, when it is providing for the exercise of the
powers granted or the privileges secured to the citizen. It does not define what
description of persons are intended to be included under these terms, or who shall be
regarded as a citizen and one of the people. It uses them as terms so well understood,
that no further description or definition was necessary.

But there are two clauses in the Constitution which point directly and specifically to the
negro race as a separate class of persons, and show clearly that they were not regarded
as a portion of the people or citizens of the Government then formed.

One of these clauses reserves to each of the thirteen States the right to import slaves
until the year 1808, if it thinks proper. And the importation which it thus sanctions was
unquestionably of persons of the race of which we are speaking, as the traffic in slaves
in the United States had always been confined to them. And by the other provision the
States pledge themselves to each other to maintain the right of property of the master,
by delivering up to him any slave who may have escaped from his service, and be found
within their respective territories. By the first above-mentioned clause, therefore, the
right to purchase and hold this property is directly sanctioned and authorized for twenty
years by the people who framed the Constitution. And by the second, they pledge
themselves to maintain and uphold the right of the master in the manner specified, as
long as the Government they then formed should endure.

And these two provisions show, conclusively, that neither the description of persons
therein referred to, nor their descendants, were embraced in any of the other provisions
of the Constitution; for certainly these two clauses were not intended to confer on them
or their posterity the blessings of liberty, or any of the personal rights so carefully
provided for the citizen.

No one of that race had ever migrated to the United States voluntarily; all of them had
been brought here as articles of merchandise. The number that had been emancipated at
that time were but few in comparison with those held in slavery; and they were
identified in the public mind with the race to which they belonged, and regarded as a
part of the slave population rather than the free.

It is obvious that they were not even in the minds of the framers of the Constitution

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when they were conferring special rights and privileges upon the citizens of a State in
every other part of the Union.

Indeed, when we look to the condition of this race in the several States at the time, it is
impossible to believe that these rights and privileges were intended to be extended to
them.

It is very true, that in that portion of the Union where the labor of the negro race was
found to be unsuited to the climate and unprofitable to the master, but few slaves were
held at the time of the Declaration of Independence; and when the Constitution was
adopted, it had entirely worn out in one of them, and measures had been taken for its
gradual abolition in several others. But this change had not been produced by any
change of opinion in relation to this race; but because it was discovered, from
experience, that slave labor was unsuited to the climate and productions of these States:
for some of the States, where it had ceased or nearly ceased to exist, were actively
engaged in the slave trade, procuring cargoes on the coast of Africa, and transporting
them for sale to those parts of the Union where their labor was found to be profitable,
and suited to the climate and productions. And this traffic was openly carried on, and
fortunes accumulated by it, without reproach from the people of the States where they
resided. And it can hardly be supposed that, in the States where it was then
countenanced in its worst form -- that is, in the seizure and transportation--the people
could have regarded those who were emancipated as entitled to equal rights with
themselves.

And we may here again refer, in support of this proposition, to the plain and
unequivocal language of the laws of the several States, some passed after the
Declaration of Independence and before the Constitution was adopted, and some since
the Government went into operation.

We need not refer, on this point, particularly to the laws of the present slaveholding
States. Their statute books are full of provisions in relation to this class, in the same
spirit with the Maryland law which we have before quoted. They have continued to
treat them as an inferior class, and to subject them to strict police regulations, drawing a
broad line of distinction between the citizen and the slave races, and legislating in
relation to them upon the same principle which prevailed at the time of the Declaration
of Independence.

As relates to these States, it is too plain for argument, that they have never been
regarded as a part of the people or citizens of the State, nor supposed to possess any
political rights which the dominant race might not withhold or grant at their pleasure.
And as long ago as 1822, the Court of Appeals of Kentucky decided that free negroes
and mulattoes were not citizens within the meaning of the Constitution of the United
States; and the correctness of this decision is recognized, and the same doctrine
affirmed, in 1 Meigs's Tenn. Reports, 331.

And if we turn to the legislation of the States where slavery had worn out, or measures

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taken for its speedy abolition, we shall find the same opinions and principles equally
fixed and equally acted upon.

Thus, Massachusetts, in 1786, passed a law similar to the colonial one of which we
have spoken. The law of 1786, like the law of 1705, forbids the marriage of any white
person with any negro, Indian, or mulatto, and inflicts a penalty of fifty pounds upon
any one who shall join them in marriage; and declares all such marriage absolutely null
and void, and degrades thus the unhappy issue of the marriage by fixing upon it the
stain of bastardy. And this mark of degradation was renewed, and again impressed upon
the race, in the careful and deliberate preparation of their revised code published in
1836.

This code forbids any person from joining in marriage any white person with any Indian,
negro, or mulatto, and subjects the party who shall offend in this respect, to
imprisonment, not exceeding six months, in the common jail, or to hard labor, and to a
fine of not less than fifty nor more than two hundred dollars; and, like the law of 1786,
it declares the marriage to be absolutely null and void. It will be seen that the
punishment is increased by the code upon the person who shall marry them, by adding
imprisonment to a pecuniary penalty.

So, too, in Connecticut. We refer more particularly to the legislation of this State,
because it was not only among the first to put an end to slavery within its own territory,
but was the first to fix a mark of reprobation upon the African slave trade. The law last
mentioned was passed in October, 1788, about nine months after the State had ratified
and adopted the present Constitution of the United States; and by that law it prohibited
its own citizens, under severe penalties, from engaging in the trade, and declared all
policies of insurance on the vessel or cargo made in the State to be null and void. But,
up to the time of the adoption of the Constitution, there is nothing in the legislation of
the State indicating any change of opinion as to the relative rights and position of the
white and black races in this country, or indicating that it meant to place the latter,
when free, upon a level with its citizens.

And certainly nothing which would have led the slaveholding States to suppose, that
Connecticut designed to claim for them, under the new Constitution, the equal rights
and privileges and rank of citizens in every other State.

The first step taken by Connecticut upon this subject was as early as 1774, wen it
passed an act forbidding the further importation of slaves into the State. But the section
containing the prohibition is introduced by the following preamble:

'And whereas the increase of slaves in this State is injurious to the poor, and
inconvenient.'

This recital would appear to have been carefully introduced, in order to prevent any
misunderstanding of the motive which induced the Legislature to pass the law, and
places it distinctly upon the interest and convenience of the white population --

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excluding the inference that it might have been intended in any degree for the benefit of
the other.

And in the act of 1784, by which the issue of slaves, born after the time therein
mentioned, were to be free at a certain age, the section is again introduced by a
preamble assigning a similar motive for the act. It is in these words:

'Whereas sound policy requires that the abolition of slavery should be effected as soon
as may be consistent with the rights of individuals, and the public safety and
welfare'--showing that the right of property in the master was to be protected, and that
the measure was one of policy, and to prevent the injury and inconvenience, to the
whites, of a slave population in the State.

And still further pursuing its legislation, we find that in the same statute passed in 1774,
which prohibited the further importation of slaves into the State, there is also a
provision by which any negro, Indian, or mulatto servant, who was found wandering
out of the town or place to which he belonged, without a written pass such as is therein
described, was made liable to be seized by any one, and taken before the next authority
to be examined and delivered up to his master -- who was required to pay the charge
which had accrued thereby. And a subsequent section of the same law provides, that if
any free negro shall travel without such pass, and shall be stopped, seized, or taken up,
he shall pay all charges arising thereby. And this law was in full operation when the
Constitution of the United States was adopted, and was not repealed till 1797. So that
up to that time free negroes and mulattoes were associated with servants and slaves in
the police regulations established by the laws of the State.

And again, in 1833, Connecticut passed another law, which made it penal to set up or
establish any school in that State for the instruction of persons of the African race not
inhabitants of the State, or to instruct or teach in any such school or institution, or board
or harbor for that purpose, any such person, without the previous consent in writing of
the civil authority of the town in which such school or institution might be.

And it appears by the case of Crandall v. The State, reported in 10 Conn. Rep., 340,
that upon an information filed against Prudence Crandall for a violation of this law, one
of the points raised in the defence was, that the law was a violation of the Constitution
of the United States; and that the persons instructed, although of the African race, were
citizens of other States, and therefore entitled to the rights and privileges of citizens in
the State of Connecticut. But Chief Justice Dagget, before whom the case was tried,
held, that persons of that description were not citizens of a State, within the meaning of
the word citizen in the Constitution of the United States, and were not therefore
entitled to the privileges and immunities of citizens in other States.

The case was carried up to the Supreme Court of Errors of the State, and the question
fully argued there. But the case went off upon another point, and no opinion was
expressed on this question.

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We have made this particular examination into the legislative and judicial action of
Connecticut, because, from the early hostility it displayed to the slave trade on the coast
of Africa, we may expect to find the laws of that State as lenient and favorable to the
subject race as those of any other State in the Union; and if we find that at the time the
Constitution was adopted, they were not even there raised to the rank of citizens, but
were still held and treated as property, and the laws relating to them passed with
reference altogether to the interest and convenience of the white race, we shall hardly
find them elevated to a higher rank anywhere else.

A brief notice of the laws of two other States, and we shall pass on to other
considerations.

By the laws of New Hampshire, collected and finally passed in 1815, no one was
permitted to be enrolled in the militia of the State, but free white citizens; and the same
provision is found in a subsequent collection of the laws, made in 1855. Nothing could
more strongly mark the entire repudiation of the African race. The alien is excluded,
because, being born in a foreign country, he cannot be a member of the community until
he is naturalized. But why are the African race, born in the State, not permitted to share
in one of the highest duties of the citizen? The answer is obvious; he is not, by the
institutions and laws of the State, numbered among its people. He forms no part of the
sovereignty of the State, and is not therefore called on to uphold and defend it.

Again, in 1822, Rhode Island, in its revised code, passed a law forbidding persons who
were authorized to join persons in marriage, from joining in marriage any white person
with any negro, Indian, or mulatto, under the penalty of two hundred dollars, and
declaring all such marriages absolutely null and void; and the same law was again
re-enacted in its revised code of 1844. So that, down to the last-mentioned period, the
strongest mark of inferiority and degradation was fastened upon the African race in that
State.

It would be impossible to enumerate and compress in the space usually allotted to an


opinion of a court, the various laws, marking the condition of this race, which were
passed from time to time after the Revolution, and before and since the adoption of the
Constitution of the United States. In addition to those already referred to, it is sufficient
to say, that Chancellor Kent, whose accuracy and research no one will question, states
in the sixth edition of his Commentaries, (published in 1848, 2 vol., 258, note b,) that in
no part of the country except Maine, did the African race, in point of fact, participate
equally with the whites in the exercise of civil and political rights.

The legislation of the States therefore shows, in a manner not to be mistaken, the
inferior and subject condition of that race at the time the Constitution was adopted, and
long afterwards, throughout the thirteen States by which that instrument was framed;
and it is hardly consistent with the respect due to these States, to suppose that they
regarded at that time, as fellow-citizens and members of the sovereignty, a class of
beings whom they had thus stigmatized; whom, as we are bound, out of respect to the
State sovereignties, to assume they had deemed it just and necessary thus to stigmatize,

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and upon whom they had impressed such deep and enduring marks of inferiority and
degradation; or, that when they met in convention to form the Constitution, they looked
upon them as a portion of their constituents, or designed to include them in the
provisions so carefully inserted for the security and protection of the liberties and rights
of their citizens. It cannot be supposed that they intended to secure to them rights, and
privileges, and rank, in the new political body throughout the Union, which every one
of them denied within the limits of its own dominion. More especially, it cannot be
believed that the large slaveholding States regarded them as included in the word
citizens, or would have consented to a Constitution which might compel them to
receive them in that character from another State. For if they were so received, and
entitled to the privileges and immunities of citizens, it would exempt them from the
operation of the special laws and from the police regulations which they considered to
be necessary for their own safety. It would give to persons of the negro race, who were
recognised as citizens in any one State of the Union, the right to enter every other State
whenever they pleased, singly or in companies, without pass or passport, and without
obstruction, to sojourn there as long as they pleased, to go where they pleased at every
hour of the day or night without molestation, unless they committed some violation of
law for which a white man would be punished; and it would give them the full liberty of
speech in public and in private upon all subjects upon which its own citizens might
speak; to hold public meetings upon political affairs, and to keep and carry arms
wherever they went. And all of this would be done in the face of the subject race of the
same color, both free and slaves, and inevitably producing discontent and
insubordination among them, and endangering the peace and safety of the State.

It is impossible, it would seem, to believe that the great men of the slaveholding States,
who took so large a share in framing the Constitution of the United States, and
exercised so much influence in procuring its adoption, could have been so forgetful or
regardless of their own safety and the safety of those who trusted and confided in them.

Besides, this want of foresight and care would have been utterly inconsistent with the
caution displayed in providing for the admission of new members into this political
family. For, when they gave to the citizens of each State the privileges and immunities
of citizens in the several States, they at the same time took from the several States the
power of naturalization, and confined that power exclusively to the Federal
Government. No State was willing to permit another State to determine who should or
should not be admitted as one of its citizens, and entitled to demand equal rights and
privileges with their own people, within their own territories. The right of naturalization
was therefore, with one accord, surrendered by the States, and confided to the Federal
Government. And this power granted to Congress to establish an uniform rule of
naturalization is, by the well-understood meaning of the word, confined to persons born
in a foreign country, under a foreign Government. It is not a power to raise to the rank
of a citizen any one born in the United States, who, from birth or parentage, by the laws
of the country, belongs to an inferior and subordinate class. And when we find the
States guarding themselves from the indiscreet or improper admission by other States of
emigrants from other countries, by giving the power exclusively to Congress, we cannot
fail to see that they could never have left with the States a much more important power
-- that is, the power of transforming into citizens a numerous class of persons, who in

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that character would be much more dangerous to the peace and safety of a large portion
of the Union, than the few foreigners one of the States might improperly naturalize. The
Constitution upon its adoption obviously took from the States all power by any
subsequent legislation to introduce as a citizen into the political family of the United
States any one, no matter where he was born, or what might be his character or
condition; and it gave to Congress the power to confer this character upon those only
who were born outside of the dominions of the United States. And no law of a State,
therefore, passed since the Constitution was adopted, can give any right of citizenship
outside of its own territory.

A clause similar to the one in the Constitution, in relation to the rights and immunities
of citizens of one State in the other States, was contained in the Articles of
Confederation. But there is a difference of language, which is worthy of note. The
provision in the Articles of Confederation was, 'that the free inhabitants of each of the
States, paupers, vagabonds, and fugitives from justice, excepted, should be entitled to
all the privileges and immunities of free citizens in the several States.'

It will be observed, that under this Confederation, each State had the right to decide for
itself, and in its own tribunals, whom it would acknowledge as a free inhabitant of
another State. The term free inhabitant, in the generality of its terms, would certainly
include one of the African race who had been manumitted. But no example, we think,
can be found of his admission to all the privileges of citizenship in any State of the
Union after these Articles were formed, and while they continued in force. And,
notwithstanding the generality of the words 'free inhabitants,' it is very clear that,
according to their accepted meaning in that day, they did not include the African race,
whether free or not: for the fifth section of the ninth article provides that Congress
should have the power 'to agree upon the number of land forces to be raised, and to
make requisitions from each State for its quota in proportion to the number of white
inhabitants in such State, which requisition should be binding.'

Words could hardly have been used which more strongly mark the line of distinction
between the citizen and the subject; the free and the subjugated races. The latter were
not even counted when the inhabitants of a State were to be embodied in proportion to
its numbers for the general defence. And it cannot for a moment be supposed, that a
class of persons thus separated and rejected from those who formed the sovereignty of
the States, were yet intended to be included under the words 'free inhabitants,' in the
preceding article, to whom privileges and immunities were so carefully secured in every
State.

But although this clause of the Articles of Confederation is the same in principle with
that inserted in the Constitution, yet the comprehensive word inhabitant, which might
be construed to include an emancipated slave, is omitted; and the privilege is confined
to citizens of the State. And this alteration in words would hardly have been made,
unless a different meaning was intended to be conveyed, or a possible doubt removed.
The just and fair inference is, that as this privilege was about to be placed under the
protection of the General Government, and the words expounded by its tribunals, and

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all power in relation to it taken from the State and its courts, it was deemed prudent to
describe with precision and caution the persons to whom this high privilege was given
-- and the word citizen was on that account substituted for the words free inhabitant.
The word citizen excluded, and no doubt intended to exclude, foreigners who had not
become citizens of some one of the States when the Constitution was adopted; and also
every description of persons who were not fully recognised as citizens in the several
States. This, upon any fair construction of the instruments to which we have referred,
was evidently the object and purpose of this change of words.

To all this mass of proof we have still to add, that Congress has repeatedly legislated
upon the same construction of the Constitution that we have given.

Three laws, two of which were passed almost immediately after the Government went
into operation, will be abundantly sufficient to show this. The two first are particularly
worthy of notice, because many of the men who assisted in framing the Constitution,
and took an active part in procuring its adoption, were then in the halls of legislation,
and certainly understood what they meant when they used the words 'people of the
United States' and 'citizen' in that well-considered instrument.

The first of these acts is the naturalization law, which was passed at the second session
of the first Congress, March 26, 1790, and confines the right of becoming citizens 'to
aliens being free white persons.' Now, the Constitution does not limit the power of
Congress in this respect to white persons. And they may, if they think proper, authorize
the naturalization of any one, of any color, who was born under allegiance to another
Government.

But the language of the law above quoted, shows that citizenship at that time was
perfectly understood to be confined to the white race; and that they alone constituted
the sovereignty in the Government.

Congress might, as we before said, have authorized the naturalization of Indians,


because they were aliens and foreigners. But, in their then untutored and savage state,
no one would have thought of admitting them as citizens in a civilized community. And,
moreover, the atrocities they had but recently committed, when they were the allies of
Great Britain in the Revolutionary war, were yet fresh in the recollection of the people
of the United States, and they were even then guarding themselves against the
threatened renewal of Indian hostilities. No one supposed then that any Indian would
ask for, or was capable of enjoying, the privileges of an American citizen, and the word
white was not used with any particular reference to them.

Neither was it used with any reference to the African race imported into or born in this
country; because Congress had no power to naturalize them, and therefore there was no
necessity for using particular words to exclude them.

It would seem to have been used merely because it followed out the line of division
which the Constitution has drawn between the citizen race, who formed and held the

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Government, and the African race, which they held in subjection and slavery, and
governed at their own pleasure.

Another of the early laws of which we have spoken, is the first militia law, which was
passed in 1792, at the first session of the second Congress. The language of this law is
equally plain and significant with the one just mentioned. It directs that every 'free
able-bodied white male citizen' shall be enrolled in the militia. The word white is
evidently used to exclude the African race, and the word 'citizen' to exclude
unnaturalized foreigners; the latter forming no part of the sovereignty, owing it no
allegiance, and therefore under no obligation to defend it. The African race, however,
born in the country, did owe allegiance to the Government, whether they were slave or
free; but it is repudiated, and rejected from the duties and obligations of citizenship in
marked language.

The third act to which we have alluded is even still more decisive; it was passed as late
as 1813, (2 Stat., 809,) and it provides: 'That from and after the termination of the war
in which the United States are now engaged with Great Britain, it shall not be lawful to
employ, on board of any public or private vessels of the United States, any person or
persons except citizens of the United States, or persons of color, natives of the United
States.

Here the line of distinction is drawn in express words. Persons of color, in the judgment
of Congress, were not included in the word citizens, and they are described as another
and different class of persons, and authorized to be employed, if born in the United
States.

And even as late as 1820, (chap. 104, sec. 8,) in the charter to the city of Washington,
the corporation is authorized 'to restrain and prohibit the nightly and other disorderly
meetings of slaves, free negroes, and mulattoes,' thus associating them together in its
legislation; and after prescribing the punishment that may be inflicted on the slaves,
proceeds in the following words: 'And to punish such free negroes and mulattoes by
penalties not exceeding twenty dollars for any one offence; and in case of the inability of
any such free negro or mulatto to pay any such penalty and cost thereon, to cause him or
her to be confined to labor for any time not exceeding six calendar months.' And in a
subsequent part of the same section, the act authorizes the corporation 'to prescribe the
terms and conditions upon which free negroes and mulattoes may reside in the city.'
This law, like the laws of the States, shows that this class of persons were governed by
special legislation directed expressly to them, and always connected with provisions for
the government of slaves, and not with those for the government of free white citizens.
And after such an uniform course of legislation as we have stated, by the colonies, by
the States, and by Congress, running through a period of more than a century, it would
seem that to call persons thus marked and stigmatized, 'citizens' of the United States,
'fellow- citizens,' a constituent part of the sovereignty, would be an abuse of terms, and
not calculated to exalt the character of an American citizen in the eyes of other nations.

The conduct of the Executive Department of the Government has been in perfect

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harmony upon this subject with this course of legislation. The question was brought
officially before the late William Wirt, when he was the Attorney General of the United
States, in 1821, and he decided that the words 'citizens of the United States' were used
in the acts of Congress in the same sense as in the Constitution; and that free persons of
color were not citizens, within the meaning of the Constitution and laws; and this
opinion has been confirmed by that of the late Attorney General, Caleb Cushing, in a
recent case, and acted upon by the Secretary of State, who refused to grant passports to
them as 'citizens of the United States.'

But it is said that a person may be a citizen, and entitled to that character, although he
does not possess all the rights which may belong to other citizens; as, for example, the
right to vote, or to hold particular offices; and that yet, when he goes into another State,
he is entitled to be recognised there as a citizen, although the State may measure his
rights by the rights which it allows to persons of a like character or class resident in the
State, and refuse to him the full rights of citizenship.

This argument overlooks the language of the provision in the Constitution of which we
are speaking.

Undoubtedly, a person may be a citizen, that is, a member of the community who form
the sovereignty, although he exercises no share of the political power, and is
incapacitated from holding particular offices. Women and minors, who form a part of
the political family, cannot vote; and when a property qualification is required to vote or
hold a particular office, those who have not the necessary qualification cannot vote or
hold the office, yet they are citizens.

So, too, a person may be entitled to vote by the law of the State, who is not a citizen
even of the State itself. And in some of the States of the Union foreigners not
naturalized are allowed to vote. And the State may give the right to free negroes and
mulattoes, but that does not make them citizens of the State, and still less of the United
States. And the provision in the Constitution giving privileges and immunities in other
States, does not apply to them.

Neither does it apply to a person who, being the citizen of a State, migrates to another
State. For then he becomes subject to the laws of the State in which he lives, and he is
no longer a citizen of the State from which he removed. And the State in which he
resides may then, unquestionably, determine his status or condition, and place him
among the class of persons who are not recognised as citizens, but belong to an inferior
and subject race; and may deny him the privileges and immunities enjoyed by its
citizens.

But so far as mere rights of person are concerned, the provision in question is confined
to citizens of a State who are temporarily in another State without taking up their
residence there. It gives them no political rights in the State, as to voting or holding
office, or in any other respect. For a citizen of one State has no right to participate in the
government of another. But if he ranks as a citizen in the State to which he belongs,

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within the meaning of the Constitution of the United States, then, whenever he goes
into another State, the Constitution clothes him, as to the rights of person, will all the
privileges and immunities which belong to citizens of the State. And if persons of the
African race are citizens of a State, and of the United States, they would be entitled to
all of these privileges and immunities in every State, and the State could not restrict
them; for they would hold these privileges and immunities under the paramount
authority of the Federal Government, and its courts would be bound to maintain and
enforce them, the Constitution and laws of the State to the contrary notwithstanding.
And if the States could limit or restrict them, or place the party in an inferior grade, this
clause of the Constitution would be unmeaning, and could have no operation; and
would give no rights to the citizen when in another State. He would have none but
what the State itself chose to allow him. This is evidently not the construction or
meaning of the clause in question. It guaranties rights to the citizen, and the State
cannot withhold them. And these rights are of a character and would lead to
consequences which make it absolutely certain that the African race were not included
under the name of citizens of a State, and were not in the contemplation of the framers
of the Constitution when these privileges and immunities were provided for the
protection of the citizen in other States.

The case of Legrand v. Darnall (2 Peters, 664) has been referred to for the purpose of
showing that this court has decided that the descendant of a slave may sue as a citizen
in a court of the United States; but the case itself shows that the question did not arise
and could not have arisen in the case.

It appears from the report, that Darnall was born in Maryland, and was the son of a
white man by one of his slaves, and his father executed certain instruments to manumit
him, and devised to him some landed property in the State. This property Darnall
afterwards sold to Legrand, the appellant, who gave his notes for the purchase-money.
But becoming afterwards apprehensive that the appellee had not been emancipated
according to the laws of Maryland, he refused to pay the notes until he could be better
satisfied as to Darnall's right to convey. Darnall, in the mean time, had taken up his
residence in Pennsylvania, and brought suit on the notes, and recovered judgment in the
Circuit Court for the district of Maryland.

The whole proceeding, as appears by the report, was an amicable one; Legrand being
perfectly willing to pay the money, if he could obtain a title, and Darnall not wishing
him to pay unless he could make him a good one. In point of fact, the whole proceeding
was under the direction of the counsel who argued the case for the appellee, who was
the mutual friend of the parties, and confided in by both of them, and whose only object
was to have the rights of both parties established by judicial decision in the most speedy
and least expensive manner.

Legrand, therefore, raised no objection to the jurisdiction of the court in the suit at law,
because he was himself anxious to obtain the judgment of the court upon his title.
Consequently, there was nothing in the record before the court to show that Darnall
was of African descent, and the usual judgment and award of execution was entered.

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And Legrand thereupon filed his bill on the equity side of the Circuit Court, stating that
Darnall was born a slave, and had not been legally emancipated, and could not therefore
take the land devised to him, nor make Legrand a good title; and praying an injunction
to restrain Darnall from proceeding to execution on the judgment, which was granted.

Darnall answered, averring in his answer that he was a free man, and capable of
conveying a good title. Testimony was taken on this point, and at the hearing the
Circuit Court was of opinion that Darnall was a free man and his title good, and
dissolved the injunction and dismissed the bill; and that decree was affirmed here, upon
the appeal of Legrand.

Now, it is difficult to imagine how any question about the citizenship of Darnall, or his
right to sue in that character, can be supposed to have arisen or been decided in that
case. The fact that he was of African descent was first brought before the court upon
the bill in equity. The suit at law had then passed into judgment and award of
execution, and the Circuit Court, as a court of law, had no longer any authority over it.
It was a valid and legal judgment, which the court that rendered it had not the power to
reverse or set aside. And unless it had jurisdiction as a court of equity to restrain him
from using its process as a court of law, Darnall, if he thought proper, would have been
at liberty to proceed on his judgment, and compel the payment of the money, although
the allegations in the bill were true, and he was incapable of making a title. No other
court could have enjoined him, for certainly no State equity court could interfere in that
way with the judgment of a Circuit Court of the United States.

But the Circuit Court as a court of equity certainly had equity jurisdiction over its own
judgment as a court of law, without regard to the character of the parties; and had not
only the right, but it was its duty -- no matter who were the parties in the judgment--to
prevent them from proceeding to enforce it by execution, if the court was satisfied that
the money was not justly and equitably due. The ability of Darnall to convey did not
depend upon his citizenship, but upon his title to freedom. And if he was free, he could
hold and convey property, by the laws of Maryland, although he was not a citizen. But
if he was by law still a slave, he could not. It was therefore the duty of the court, sitting
as a court of equity in the latter case, to prevent him from using its process, as a court of
common law, to compel the payment of the purchase-money, when it was evident that
the purchaser must lose the land.

But if he was free, and could make a title, it was equally the duty of the court not to
suffer Legrand to keep the land, and refuse the payment of the money, upon the ground
that Darnall was incapable of suing or being sued as a citizen in a court of the United
States. The character or citizenship of the parties had no connection with the question
of jurisdiction, and the matter in dispute had no relation to the citizenship of Darnall.
Nor is such a question alluded to in the opinion of the court.

Besides, we are by no means prepared to say that there are not many cases, civil as well
as criminal, in which a Circuit Court of the United States may exercise jurisdiction,
although one of the African race is a party; that broad question is not before the court.

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The question with which we are now dealing is, whether a person of the African race
can be a citizen of the United States, and become thereby entitled to a special privilege,
by virtue of his title to that character, and which, under the Constitution, no one but a
citizen can claim. It is manifest that the case of Legrand and Darnall has no bearing on
that question, and can have no application to the case now before the court.

This case, however, strikingly illustrates the consequences that would follow the
construction of the Constitution which would give the power contended for to a State.
It would in effect give it also to an individual. For if the father of young Darnall had
manumitted him in his lifetime, and sent him to reside in a State which recognised him
as a citizen, he might have visited and sojourned in Maryland when he pleased, and as
long as he pleased, as a citizen of the United States; and the State officers and tribunals
would be compelled, by the paramount authority of the Constitution, to receive him and
treat him as one of its citizens, exempt from the laws and police of the State in relation
to a person of that description, and allow him to enjoy all the rights and privileges of
citizenship, without respect to the laws of Maryland, although such laws were deemed
by it absolutely essential to its own safety.

The only two provisions which point to them and include them, treat them as property,
and make it the duty of the Government to protect it; no other power, in relation to this
race, is to be found in the Constitution; and as it is a Government of special, delegated,
powers, no authority beyond these two provisions can be constitutionally exercised. The
Government of the United States had no right to interfere for any other purpose but that
of protecting the rights of the owner, leaving it altogether with the several States to
deal with this race, whether emancipated or not, as each State may think justice,
humanity, and the interests and safety of society, require. The States evidently intended
to reserve this power exclusively to themselves.

No one, we presume, supposes that any change in public opinion or feeling, in relation
to this unfortunate race, in the civilized nations of Europe or in this country, should
induce the court to give to the words of the Constitution a more liberal construction in
their favor than they were intended to bear when the instrument was framed and
adopted. Such an argument would be altogether inadmissible in any tribunal called on to
interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the
instrument itself by which it may be amended; but while it remains unaltered, it must be
construed now as it was understood at the time of its adoption. It is not only the same in
words, but the same in meaning, and delegates the same powers to the Government,
and reserves and secures the same rights and privileges to the citizen; and as long as it
continues to exist in its present form, it speaks not only in the same words, but with the
same meaning and intent with which it spoke when it came from the hands of its
framers, and was voted on and adopted by the people of the United States. Any other
rule of construction would abrogate the judicial character of this court, and make it the
mere reflex of the popular opinion or passion of the day. This court was not created by
the Constitution for such purposes. Higher and graver trusts have been confided to it,
and it must not falter in the path of duty.

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What the construction was at that time, we think can hardly admit of doubt. We have
the language of the Declaration of Independence and of the Articles of Confederation,
in addition to the plain words of the Constitution itself; we have the legislation of the
different States, before, about the time, and since, the Constitution was adopted; we
have the legislation of Congress, from the time of its adoption to a recent period; and
we have the constant and uniform action of the Executive Department, all concurring
together, and leading to the same result. And if anything in relation to the construction
of the Constitution can be regarded as settled, it is that which we now give to the word
'citizen' and the word 'people.' And upon a full and careful consideration of the subject,
the court is of opinion, that, upon the facts stated in the plea in abatement, DRED
SCOTT was not a citizen of Missouri within the meaning of the Constitution of the
United States, and not entitled as such to sue in its courts; and, consequently, that the
Circuit Court had no jurisdiction of the case, and that the judgment on the plea in
abatement is erroneous.

We are aware that doubts are entertained by some of the members of the court, whether
the plea in abatement is legally before the court upon this writ of error; but if that plea is
regarded as waived, or out of the case upon any other ground, yet the question as to the
jurisdiction of the Circuit Court is presented on the face of the bill of exception itself,
taken by the plaintiff at the trial; for he admits that he and his wife were born slaves, but
endeavors to make out his title to freedom and citizenship by showing that they were
taken by their owner to certain places, hereinafter mentioned, where slavery could not
by law exist, and that they thereby became free, and upon their return to Missouri
became citizens of that State.

Now, if the removal of which he speaks did not give them their freedom, then by his
own admission he is still a slave; and whatever opinions may be entertained in favor of
the citizenship of a free person of the African race, no one supposes that a slave is a
citizen of the State or of the United States.

If, therefore, the acts done by his owner did not make them free persons, he is still a
slave, and certainly incapable of suing in the character of a citizen.

The principle of law is too well settled to be disputed, that a court can give no judgment
for either party, where it has no jurisdiction; and if, upon the showing of Scott himself,
it appeared that he was still a slave, the case ought to have been dismissed, and the
judgment against him and in favor of the defendant for costs, is, like that on the plea in
abatement, erroneous, and the suit ought to have been dismissed by the Circuit Court
for want of jurisdiction in that court.

But, before we proceed to examine this part of the case, it may be proper to notice an
objection taken to the judicial authority of this court to decide it; and it has been said,
that as this court has decided against the jurisdiction of the Circuit Court on the plea in
abatement, it has no right to examine any question presented by the exception; and that
anything it may say upon that part of the case will be extra-judicial, and mere obiter
dicta.

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This is a manifest mistake; there can be no doubt as to the jurisdiction of this court to
revise the judgment of a Circuit Court, and to reverse it for any error apparent on the
record, whether it be the error of giving judgment in a case over which it had no
jurisdiction, or any other material error; and this, too, whether there is a plea in
abatement or not.

The objection appears to have arisen from confounding writs of error to a State court,
with writs of error to a Circuit Court of the United States.

Undoubtedly, upon a writ of error to a State court, unless the record shows a case that
gives jurisdiction, the case must be dismissed for want of jurisdiction in this court. And
if it is dismissed on that ground, we have no right to examine and decide upon any
question presented by the bill of exceptions, or any other part of the record. But writs of
error to a State court, and to a Circuit Court of the United States, are regulated by
different laws, and stand upon entirely different principles. And in a writ of error to a
Circuit Court of the United States, the whole record is before this court for examination
and decision; and if the sum in controversy is large enough to give jurisdiction, it is not
only the right, but it is the judicial duty of the court, to examine the whole case as
presented by the record; and if it appears upon its face that any material error or errors
have been committed by the court below, it is the duty of this court to reverse the
judgment, and remand the case. And certainly an error in passing a judgment upon the
merits in favor of either party, in a case which it was not authorized to try, and over
which it had no jurisdiction, is as grave an error as a court can commit.

The plea in abatement is not a plea to the jurisdiction of this court, but to the
jurisdiction of the Circuit Court. And it appears by the record before us, that the Circuit
Court committed an error, in deciding that it had jurisdiction, upon the facts in the case,
admitted by the pleadings. It is the duty of the appellate tribunal to correct this error;
but that could not be done by dismissing the case for want of jurisdiction here--for that
would leave the erroneous judgment in full force, and the injured party without remedy.
And the appellate court therefore exercises the power for which alone appellate courts
are constituted, by reversing the judgment of the court below for this error. It exercises
its proper and appropriate jurisdiction over the judgment and proceedings of the Circuit
Court, as they appear upon the record brought up by the writ of error.

The correction of one error in the court below does not deprive the appellate court of
the power of examining further into the record, and correcting any other material errors
which may have been committed by the inferior court.

There is certainly no rule of law--nor any practice--nor any decision of a court -- which
even questions this power in the appellate tribunal. On the contrary, it is the daily
practice of this court, and of all appellate courts where they reverse the judgment of an
inferior court for error, to correct by its opinions whatever errors may appear on the
record material to the case; and they have always held it to be their duty to do so where
the silence of the court might lead to misconstruction or future controversy, and the
point has been relied on by either side, and argued before the court.

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In the case before us, we have already decided that the Circuit Court erred in deciding
that it had jurisdiction upon the facts admitted by the pleadings. And it appears that, in
the further progress of the case, it acted upon the erroneous principle it had decided on
the pleadings, and gave judgment for the defendant, where, upon the facts admitted in
the exception, it had no jurisdiction.

We are at a loss to understand upon what principle of law, applicable to appellate


jurisdiction, it can be supposed that this court has not judicial authority to correct the
last-mentioned error, because they had before corrected the former; or by what process
of reasoning it can be made out, that the error of an inferior court in actually
pronouncing judgment for one of the parties, in a case in which it had no jurisdiction,
cannot be looked into or corrected by this court, because we have decided a similar
question presented in the pleadings. The last point is distinctly presented by the facts
contained in the plaintiff's own bill of exceptions, which he himself brings here by this
writ of error. It was the point which chiefly occupied the attention of the counsel on
both sides in the argument--and the judgment which this court must render upon both
errors is precisely the same. It must, in each of them, exercise jurisdiction over the
judgment, and reverse it for the errors committed by the court below; and issue a
mandate to the Circuit Court to conform its judgment to the opinion pronounced by this
court, by dismissing the case for want of jurisdiction in the Circuit Court. This is the
constant and invariable practice of this court, where it reverses a judgment for want of
jurisdiction in the Circuit Court.

It can scarcely be necessary to pursue such a question further. The want of jurisdiction
in the court below may appear on the record without any plea in abatement. This is
familiarly the case where a court of chancery has exercised jurisdiction in a case where
the plaintiff had a plain and adequate remedy at law, and it so appears by the transcript
when brought here by appeal. So also where it appears that a court of admiralty has
exercised jurisdiction in a case belonging exclusively to a court of common law. In these
cases there is no plea in abatement. And for the same reason, and upon the same
principles, where the defect of jurisdiction is patent on the record, this court is bound to
reverse the judgment, although the defendant has not pleaded in abatement to the
jurisdiction of the inferior court.

The cases of Jackson v. Ashton and of Capron v. Van Noorden, to which we have
referred in a previous part of this opinion, are directly in point. In the last-mentioned
case, Capron brought an action against Van Noorden in a Circuit Court of the United
States, without showing, by the usual averments of citizenship, that the court had
jurisdiction. There was no plea in abatement put in, and the parties went to trial upon
the merits. The court gave judgment in favor of the defendant with costs. The plaintiff
thereupon brought his writ of error, and this court reversed the judgment given in favor
of the defendant, and remanded the case with directions to dismiss it, because it did not
appear by the transcript that the Circuit Court had jurisdiction.

The case before us still more strongly imposes upon this court the duty of examining
whether the court below has not committed an error, in taking jurisdiction and giving a

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judgment for costs in favor of the defendant; for in Capron v. Van Noorden the
judgment was reversed, because it did not appear that the parties were citizens of
different States. They might or might not be. But in this case it does appear that the
plaintiff was born a slave; and if the facts upon which he relies have not made him free,
then it appears affirmatively on the record that he is not a citizen, and consequently his
suit against Sandford was not a suit between citizens of different States, and the court
had no authority to pass any judgment between the parties. The suit ought, in this view
of it, to have been dismissed by the Circuit Court, and its judgment in favor of Sandford
is erroneous, and must be reversed.

It is true that the result either way, by dismissal or by a judgment for the defendant,
makes very little, if any, difference in a pecuniary or personal point of view to either
party. But the fact that the result would be very nearly the same to the parties in either
form of judgment, would not justify this court in sanctioning an error in the judgment
which is patent on the record, and which, if sanctioned, might be drawn into precedent,
and lead to serious mischief and injustice in some future suit.

We proceed, therefore, to inquire whether the facts relied on by the plaintiff entitled him
to his freedom.

The case, as he himself states it, on the record brought here by his writ of error, is this:

The plaintiff was a negro slave, belonging to Dr. Emerson, who was a surgeon in the
army of the United States. In the year 1834, he took the plaintiff from the State of
Missouri to the military post at Rock Island, in the State of Illinois, and held him there
as a slave until the month of April or May, 1836.

At the time last mentioned, said Dr. Emerson removed the plaintiff from said military
post at Rock Island to the military post at Fort Snelling, situate on the west bank of the
Mississippi river, in the Territory known as Upper Louisiana, acquired by the United
States of France, and situate north of the latitude of thirty-six degrees thirty minutes
north, and north of the State of Missouri. Said Dr. Emerson held the plaintiff in slavery
at said Fort Snelling, from said last-mentioned date until the year 1838.

In the year 1835, Harriet, who is named in the second count of the plaintiff's
declaration, was the negro slave of Major Taliaferro, who belonged to the army of the
United States. In that year, 1835, said Major Taliaferro took said Harriet to said Fort
Snelling, a military post, situated as hereinbefore stated, and kept her there as a slave
until the year 1836, and then sold and delivered her as a slave, at said Fort Snelling,
unto the said Dr. Emerson hereinbefore named. Said Dr. Emerson held said Harriet in
slavery at said Fort Snelling until the year 1838.

In the year 1836, the plaintiff and Harriet intermarried, at Fort Snelling, with the
consent of Dr. Emerson, who then claimed to be their master and owner.

Eliza and Lizzie, named in the third count of the plaintiff's declaration, are the fruit of

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that marriage. Eliza is about fourteen years old, and was born on board the steamboat
Gipsey, north of the north line of the State of Missouri, and upon the river Mississippi.
Lizzie is about seven years old, and was born in the State of Missouri, at the military
post called Jefferson Barracks.

In the year 1838, said Dr. Emerson removed the plaintiff and said Harriet, and their said
daughter Eliza, from said Fort Snelling to the State of Missouri, where they have ever
since resided. Before the commencement of this suit, said Dr. Emerson sold and
conveyed the plaintiff, and Harriet, Eliza, and Lizzie, to the defendant, as slaves, and
the defendant has ever since claimed to hold them, and each of them, as slaves.

In considering this part of the controversy, two questions arise: 1. Was he, together with
his family, free in Missouri by reason of the stay in the territory of the United States
hereinbefore mentioned? And 2. If they were not, is Scott himself free by reason of his
removal to Rock Island, in the State of Illinois, as stated in the above admissions?

We proceed to examine the first question.

The act of Congress, upon which the plaintiff relies, declares that slavery and
involuntary servitude, except as a punishment for crime, shall be forever prohibited in all
that part of the territory ceded by France, under the name of Louisiana, which lies north
of thirty-six degrees thirty minutes north latitude, and not included within the limits of
Missouri. And the difficulty which meets us at the threshold of this part of the inquiry is,
whether Congress was authorized to pass this law under any of the powers granted to it
by the Constitution; for if the authority is not given by that instrument, it is the duty of
this court to declare it void and inoperative, and incapable of conferring freedom upon
any one who is held as a slave under the have of any one of the States.

The counsel for the plaintiff has laid much stress upon that article in the Constitution
which confers on Congress the power 'to dispose of and make all needful rules and
regulations respecting the territory or other property belonging to the United States;'
but, in the judgment of the court, that provision has no bearing on the present
controversy, and the power there given, whatever it may be, is confined, and was
intended to be confined, to the territory which at that time belonged to, or was claimed
by, the United States, and was within their boundaries as settled by the treaty with
Great Britain, and can have no influence upon a territory afterwards acquired from a
foreign Government. It was a special provision for a known and particular territory, and
to meet a present emergency, and nothing more.

A brief summary of the history of the times, as well as the careful and measured terms in
which the article is framed, will show the correctness of this proposition.

It will be remembered that, from the commencement of the Revolutionary war, serious
difficulties existed between the States, in relation to the disposition of large and
unsettled territories which were included in the chartered limits of some of the States.
And some of the other States, and more especially Maryland, which had no unsettled

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lands, insisted that as the unoccupied lands, if wrested from Great Britain, would owe
their preservation to the common purse and the common sword, the money arising from
them ought to be applied in just proportion among the several States to pay the
expenses of the war, and ought not to be appropriated to the use of the State in whose
chartered limits they might happen to lie, to the exclusion of the other States, by whose
combined efforts and common expense the territory was defended and preserved against
the claim of the British Government.

These difficulties caused much uneasiness during the war, while the issue was in some
degree doubtful, and the future boundaries of the United States yet to be defined by
treaty, if we achieved our independence.

The majority of the Congress of the Confederation obviously concurred in opinion with
the State of Maryland, and desired to obtain from the States which claimed it a cession
of this territory, in order that Congress might raise money on this security to carry on the
war. This appears by the resolution passed on the 6th of September, 1780, strongly
urging the States to cede these lands to the United States, both for the sake of peace
and union among themselves, and to maintain the public credit; and this was followed
by the resolution of October 10th, 1780, by which Congress pledged itself, that if the
lands were ceded, as recommended by the resolution above mentioned, they should be
disposed of for the common benefit of the United States, and be settled and formed into
distinct republican States, which should become members of the Federal Union, and
have the same rights of sovereignty, and freedom, and independence, as other States.

But these difficulties became much more serious after peace took place, and the
boundaries of the United States were established. Every State, at that time, felt severely
the pressure of its war debt; but in Virginia, and some other States, there were large
territories of unsettled lands, the sale of which would enable them to discharge their
obligations without much inconvenience; while other States, which had no such
resource, saw before them many years of heavy and burdensome taxation; and the latter
insisted, for the reasons before stated, that these unsettled lands should be treated as the
common property of the States, and the proceeds applied to their common benefit.

The letters from the statesmen of that day will show how much this controversy
occupied their thoughts, and the dangers that were apprehended from it. It was the
disturbing element of the time, and fears were entertained that it might dissolve the
Confederation by which the States were then united.

These fears and dangers were, however, at once removed, when the State of Virginia, in
1784, voluntarily ceded to the United States the immense tract of country lying
northwest of the river Ohio, and which was within the acknowledged limits of the
State. The only object of the State, in making this cession, was to put an end to the
threatening and exciting controversy, and to enable the Congress of that time to dispose
of the lands, and appropriate the proceeds as a common fund for the common benefit of
the States. It was not ceded, because it was inconvenient to the State to hold and
govern it, nor from any expectation that it could be better or more conveniently

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governed by the United States.

The example of Virginia was soon afterwards followed by other States, and, at the time
of the adoption of the Constitution, all of the States, similarly situated, had ceded their
unappropriated lands, except North Carolina and Georgia. The main object for which
these cessions were desired and made, was on account of their money value, and to put
an end to a dangerous controversy, as to who was justly entitled to the proceeds when
the lands should be sold. It is necessary to bring this part of the history of these cessions
thus distinctly into view, because it will enable us the better to comprehend the
phraseology of the article in the Constitution, so often referred to in the argument.

Undoubtedly the powers of sovereignty and the eminent domain were ceded with the
land. This was essential, in order to make it effectual, and to accomplish its objects. But
it must be remembered that, at that time, there was no Government of the United States
in existence with enumerated and limited powers; what was then called the United
States, were thirteen separate, sovereign, independent States, which had entered into a
league or confederation for their mutual protection and advantage, and the Congress of
the United States was composed of the representatives of these separate sovereignties,
meeting together, as equals, to discuss and decide on certain measures which the States,
by the Articles of Confederation, had agreed to submit to their decision. But this
Confederation had none of the attributes of sovereignty in legislative, executive, or
judicial power. It was little more than a congress of ambassadors, authorized to
represent separate nations, in matters in which they had a common concern.

It was this Congress that accepted the cession from Virginia. They had no power to
accept it under the Articles of Confederation. But they had an undoubted right, as
independent sovereignties, to accept any cession of territory for their common benefit,
which all of them assented to; and it is equally clear, that as their common property, and
having no superior to control them, they had the right to exercise absolute dominion
over it, subject only to the restrictions which Virginia had imposed in her act of cession.
There was, as we have said, no Government of the United States then in existence with
special enumerated and limited powers. The territory belonged to sovereignties, who,
subject to the limitations above mentioned, had a right to establish any form of
government they pleased, by compact or treaty among themselves, and to regulate rights
of person and rights of property in the territory, as they might deem proper. It was by a
Congress, representing the authority of these several and separate sovereignties, and
acting under their authority and command, (but not from any authority derived from the
Articles of Confederation,) that the instrument usually called the ordinance of 1787 was
adopted; regulating in much detail the principles and the laws by which this territory
should be governed; and among other provisions, slavery is prohibited in it. We do not
question the power of the States, by agreement among themselves, to pass this
ordinance, nor its obligatory force in the territory, while the confederation or league of
the States in their separate sovereign character continued to exist.

This was the state of things when the Constitution of the United States was formed.
The territory ceded by Virginia belonged to the several confederated States as common

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property, and they had united in establishing in it a system of government and


jurisprudence, in order to prepare it for admission as States, according to the terms of
the cession. They were about to dissolve this federative Union, and to surrender a
portion of their independent sovereignty to a new Government, which, for certain
purposes, would make the people of the several States one people, and which was to be
supreme and controlling within its sphere of action throughout the United States; but
this Government was to be carefully limited in its powers, and to exercise no authority
beyond those expressly granted by the Constitution, or necessarily to be implied from
the language of the instrument, and the objects it was intended to accomplish; and as
this league of States would, upon the adoption of the new Government, cease to have
any power over the territory, and the ordinance they had agreed upon be incapable of
execution, and a mere nullity, it was obvious that some provision was necessary to give
the new Government sufficient power to enable it to carry into effect the objects for
which it was ceded, and the compacts and agreements which the States had made with
each other in the exercise of their powers of sovereignty. It was necessary that the lands
should be sold to pay the war debt; that a Government and system of jurisprudence
should be maintained in it, to protect the citizens of the United States who should
migrate to the territory, in their rights of person and of property. It was also necessary
that the new Government, about to be adopted, should be authorized to maintain the
claim of the United States to the unappropriated lands in North Carolina and Georgia,
which had not then been ceded, but the cession of which was confidently anticipated
upon some terms that would be arranged between the General Government and these
two States. And, moreover, there were many articles of value besides this property in
land, such as arms, military stores, munitions, and ships of war, which were the common
property of the States, when acting in their independent characters as confederates,
which neither the new Government nor any one else would have a right to take
possession of, or control, without authority from them; and it was to place these things
under the guardianship and protection of the new Government, and to clothe it with the
necessary powers, that the clause was inserted in the Constitution which give Congress
the power 'to dispose of and make all needful rules and regulations respecting the
territory or other property belonging to the United States.' It was intended for a specific
purpose, to provide for the things we have mentioned. It was to transfer to the new
Government the property then held in common by the States, and to give to that
Government power to apply it to the objects for which it had been destined by mutual
agreement among the States before their league was dissolved. It applied only to the
property which the States held in common at that time, and has no reference whatever
to any territory or other property which the new sovereignty might afterwards itself
acquire.

The language used in the clause, the arrangement and combination of the powers, and
the somewhat unusual phraseology it uses, when it speaks of the political power to be
exercised in the government of the territory, all indicate the design and meaning of the
clause to be such as we have mentioned.

It does not speak of any territory, nor of Territories, but uses language which, according
to its legitimate meaning, points to a particular thing. The power is given in relation
only to the territory of the United States -- that is, to a territory then in existence, and

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then known or claimed as the territory of the United States. It begins its enumeration of
powers by that of disposing, in other words, making sale of the lands, or raising money
from them, which, as we have already said, was the main object of the cession, and
which is accordingly the first thing provided for in the article. It then gives the power
which was necessarily associated with the disposition and sale of the lands--that is, the
power of making needful rules and regulations respecting the territory. And whatever
construction may now be given to these words, every one, we think, must admit that
they are not the words usually employed by statesmen in giving supreme power of
legislation. They are certainly very unlike the words used in the power granted to
legislate over territory which the new Government might afterwards itself obtain by
cession from a State, either for its seat of Government, or for forts, magazines, arsenals,
dock yards, and other needful buildings.

And the same power of making needful rules respecting the territory is, in precisely the
same language, applied to the other property belonging to the United
States--associating the power over the territory in this respect with the power over
movable or personal property--that is, the ships, arms, and munitions of war, which then
belonged in common to the State sovereignties. And it will hardly be said, that this
power, in relation to the last-mentioned objects, was deemed necessary to be thus
specially given to the new Government, in order to authorize it to make needful rules
and regulations respecting the ships it might itself build, or arms and munitions of war it
might itself manufacture or provide for the public service.

No one, it is believed, would think a moment of deriving the power of Congress to


make needful rules and regulations in relation to property of this kind from this clause of
the Constitution. Nor can it, upon any fair construction, be applied to any property but
that which the new Government was about the receive from the confederated States.
And if this be true as to this property, it must be equally true and limited as to the
territory, which is so carefully and precisely coupled with it --and like it referred to as
property in the power granted. The concluding words of the clause appear to render this
construction irresistible; for, after the provisions we have mentioned, it proceeds to say,
'that nothing in the Constitution shall be so construed as to prejudice any claims of the
United States, or of any particular State.'

Now, as we have before said, all of the States, except North Carolina and Georgia, had
made the cession before the Constitution was adopted, according to the resolution of
Congress of October 10, 1780. The claims of other States, that the unappropriated lands
in these two States should be applied to the common benefit, in like manner, was still
insisted on, but refused by the States. And this member of the clause in question
evidently applies to them, and can apply to nothing else. It was to exclude the
conclusion that either party, by adopting the Constitution, would surrender what they
deemed their rights. And when the latter provision relates so obviously to the
unappropriated lands not yet ceded by the States, and the first clause makes provision
for those then actually ceded, it is impossible, by any just rule of construction, to make
the first provision general, and extend to all territories, which the Federal Government
might in any way afterwards acquire, when the latter is plainly and unequivocally

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confined to a particular territory; which was a part of the same controversy, and
THE UNITED STATES SUPREME COURT - Dred Scott

like power of making needful rules and regulations. But if the clause is construed in the
expanded sense contended for, so as to embrace any territory acquired from a foreign
nation by the present Government, and to give it in such territory a despotic and
unlimited power over persons and property, such as the confederated States might
exercise in their common property, it would be difficult to account for the phraseology
used, when compared with other grants of power--and also for its association with the
other provisions in the same clause.

The Constitution has always been remarkable for the felicity of its arrangement of
different subjects, and the perspicuity and appropriateness of the language it uses. But if
this clause is construed to extend to territory acquired by the present Government from
a foreign nation, outside of the limits of any charter from the British Government to a
colony, it would be difficult to say, why it was deemed necessary to give the
Government the power to sell any vacant lands belonging to the sovereignty which
might be found within it; and if this was necessary, why the grant of this power should
precede the power to legislate over it and establish a Government there; and still more
difficult to say, why it was deemed necessary so specially and particularly to grant the
power to make needful rules and regulations in relation to any personal or movable
property it might acquire there. For the words, other property necessarily, by every
known rule of interpretation, must mean property of a different description from
territory or land. And the difficulty would perhaps be insurmountable in endeavoring to
account for the last member of the sentence, which provides that 'nothing in this
Constitution shall be so construed as to prejudice any claims of the United States or any
particular State,' or to say how any particular State could have claims in or to a territory
ceded by a foreign Government, or to account for associating this provision with the
preceding provisions of the clause, with which it would appear to have no connection.

The words 'needful rules and regulations' would seem, also, to have been cautiously
used for some definite object. They are not the words usually employed by statesmen,
when they mean to give the powers of sovereignty, or to establish a Government, or to
authorize its establishment. Thus, in the law to renew and keep alive the ordinance of
1787, and to re-establish the Government, the title of the law is: 'An act to provide for
the government of the territory northwest of the river Ohio.' And in the Constitution,
when granting the power to legislate over the territory that may be selected for the seat
of Government independently of a State, it does not say Congress shall have power 'to
make all needful rules and regulations respecting the territory;' but it declares that
'Congress shall have power to exercise exclusive legislation in all cases whatsoever over
such District (not exceeding ten miles square) as may, by cession of particular States
and the acceptance of Congress, become the seat of the Government of the United
States.

The words 'rules and regulations' are usually employed in the Constitution in speaking
of some particular specified power which it means to confer on the Government, and
not, as we have seen, when granting general powers of legislation. As, for example, in
the particular power to Congress 'to make rules for the government and regulation of
the land and naval forces, or the particular and specific power to regulate commerce;' 'to

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establish an uniform rule of naturalization;' 'to coin money and regulate the value
thereof.' And to construe the words of which we are speaking as a general and unlimited
grant of sovereignty over territories which the Government might afterwards acquire, is
to use them in a sense and for a purpose for which they were not used in any other part
of the instrument. But if confined to a particular Territory, in which a Government and
laws had already been established, but which would require some alterations to adapt it
to the new Government, the words are peculiarly applicable and appropriate for that
purpose.

The necessity of this special provision in relation to property and the rights or property
held in common by the confederated States, is illustrated by the first clause of the sixth
article. This clause provides that 'all debts, contracts, and engagements entered into
before the adoption of this Constitution, shall be as valid against the United States
under this Government as under the Confederation.' This provision, like the one under
consideration, was indispensable if the new Constitution was adopted. The new
Government was not a mere change in a dynasty, or in a form of government, leaving
the nation or sovereignty the same, and clothed with all the rights, and bound by all the
obligations of the preceding one. But, when the present United States came into
existence under the new Government, it was a new political body, a new nation, then
for the first time taking its place in the family of nations. It took nothing by succession
from the Confederation. It had no right, as its successor, to any property or rights of
property which it had acquired, and was not liable for any of its obligations. It was
evidently viewed in this light by the framers of the Constitution. And as the several
States would cease to exist in their former confederated character upon the adoption of
the Constitution, and could not, in that character, again assemble together, special
provisions were indispensable to transfer to the new Government the property and
rights which at that time they held in common; and at the same time to authorize it to
lay taxes and appropriate money to pay the common debt which they had contracted;
and this power could only be given to it by special provisions in the Constitution. The
clause in relation to the territory and other property of the United States provided for
the first, and the clause last quoted provided for the other. They have no connection
with the general powers and rights of sovereignty delegated to the new Government,
and can neither enlarge nor diminish them. They were inserted to meet a present
emergency, and not to regulate its powers as a Government.

Indeed, a similar provision was deemed necessary, in relation to treaties made by the
Confederation; and when in the clause next succeeding the one of which we have last
spoken, it is declared that treaties shall be the supreme law of the land, care is taken to
include, by express words, the treaties made by the confederated States. The language
is: 'and all treaties made, or which shall be made, under the authority of the United
States, shall be the supreme law of the land.'

Whether, therefore, we take the particular clause in question, by itself, or in connection


with the other provisions of the Constitution, we think it clear, that it applies only to
the particular territory of which we have spoken, and cannot, by any just rule of
interpretation, be extended to territory which the new Government might afterwards

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obtain from a foreign nation. Consequently, the power which Congress may have
lawfully exercised in this Territory, while it remained under a Territorial Government,
and which may have been sanctioned by judicial decision, can furnish no justification
and no argument to support a similar exercise of power over territory afterwards
acquired by the Federal Government. We put aside, therefore, any argument, drawn
from precedents, showing the extent of the power which the General Government
exercised over slavery in this Territory, as altogether inapplicable to the case before us.

But the case of the American and Ocean Insurance Companies v. Canter (1 Pet., 511)
has been quoted as establishing a different construction of this clause of the
Constitution. There is, however, not the slightest conflict between the opinion now
given and the one referred to; and it is only by taking a single sentence out of the latter
and separating it from the context, that even an appearance of conflict can be shown.
We need not comment on such a mode of expounding an opinion of the court. Indeed it
most commonly misrepresents instead of expounding it. And this is fully exemplified in
the case referred to, where, if one sentence is taken by itself, the opinion would appear
to be in direct conflict with that now given; but the words which immediately follow
that sentence show that the court did not mean to decide the point, but merely affirmed
the power of Congress to establish a Government in the Territory, leaving it an open
question, whether that power was derived from this clause in the Constitution, or was
to be necessarily inferred from a power to acquire territory by cession from a foreign
Government. The opinion on this part of the case is short, and we give the whole of it
to show how well the selection of a single sentence is calculated to mislead.

The passage referred to is in page 542, in which the court, in speaking of the power of
Congress to establish a Territorial Government in Florida until it should become a State,
uses the following language: 'In the mean time Florida continues to be a Territory of the
United States, governed by that clause of the Constitution which empowers Congress
to make all needful rules and regulations respecting the territory or other property of the
United States. Perhaps the power of governing a Territory belonging to the United
States, which has not, by becoming a State, acquired the means of self- government,
may result, necessarily, from the facts that it is not within the jurisdiction of any
particular State, and is within the power and jurisdiction of the United States. The right
to govern may be the inevitable consequence of the right to acquire territory. Whichever
may be the source from which the power is derived, the possession of it is
unquestionable.' It is thus clear, from the whole opinion on this point, that the court did
not mean to decide whether the power was derived from the clause in the Constitution,
or was the necessary consequence of the right to acquire. They do decide that the power
in Congress is unquestionable, and in this we entirely concur, and nothing will be found
in this opinion to the contrary. The power stands firmly on the latter alternative put by
the court--that is, as 'the inevitable consequence of the right to acquire territory.' And
what still more clearly demonstrates that the court did not mean to decide the question,
but leave it open for future consideration, is the fact that the case was decided in the
Circuit Court by Mr. Justice Johnson, and his decision was affirmed by the Supreme
Court. His opinion at the circuit is given in full in a note to the case, and in that opinion
he states, in explicit terms, that the clause of the Constitution applies only to the
territory then within the limits of the United States, and not to Florida, which had been

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acquired by cession from Spain. This part of his opinion will be found in the note in
page 517 of the report. But he does not dissent from the opinion of the Supreme Court;
thereby showing that, in his judgment, as well as that of the court, the case before them
did not call for a decision on that particular point, and the court abstained from deciding
it. And in a part of its opinion subsequent to the passage we have quoted, where the
court speak of the legislative power of Congress in Florida, they still speak with the
same reserve. And in page 546, speaking of the power of Congress to authorize the
Territorial Legislature to establish courts there, the court say: 'They are legislative
courts, created in virtue of the general right of sovereignty which exists in the
Government, or in virtue of that clause which enables Congress to make all needful
rules and regulations respecting the territory belonging to the United States.' It has been
said that the construction given to this clause is new, and now for the first time brought
forward. The case of which we are speaking, and which has been so much discussed,
shows that the fact is otherwise. It shows that precisely the same question came before
Mr. Justice Johnson, at his circuit, thirty years ago--was fully considered by him, and the
same construction given to the clause in the Constitution which is now given by this
court. And that upon an appeal from his decision the same question was brought before
this court, but was not decided because a decision upon it was not required by the case
before the court.

There is another sentence in the opinion which has been commented on, which even in
a still more striking manner shows how one may mislead or be misled by taking out a
single sentence from the opinion of a court, and leaving out of view what precedes and
follows. It is in page 546, near the close of the opinion, in which the court say: 'In
legislating for them,' (the territories of the United States,) 'Congress exercises the
combined powers of the General and of a State Government.' And it is said, that as a
State may unquestionably prohibit slavery within its territory, this sentence decides in
effect that Congress may do the same in a Territory of the United States, exercising
there the powers of a State, as well as the power of the General Government.

The examination of this passage in the case referred to, would be more appropriate
when we come to consider in another part of this opinion what power Congress can
constitutionally exercise in a Territory, over the rights of person or rights of property of
a citizen. But, as it is in the same case with the passage we have before commented on,
we dispose of it now, as it will save the court from the necessity of referring again to the
case. And it will be seen upon reading the page in which this sentence is found, that it
has no reference whatever to the power of Congress over rights of person or rights of
property--but relates altogether to the power of establishing judicial tribunals to
administer the laws constitutionally passed, and defining the jurisdiction they may
exercise.

The law of Congress establishing a Territorial Government in Florida, provided that the
Legislature of the Territory should have legislative powers over 'all rightful objects of
legislation; but no law should be valid which was inconsistent with the laws and
Constitution of the United States.' Under the power thus conferred, the Legislature of
Florida passed an act, erecting a tribunal at Key West to decide cases of salvage. And in

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the case of which we are speaking, the question arose whether the Territorial
Legislature could be authorized by Congress to establish such a tribunal, with such
powers; and one of the parties, among other objections, insisted that Congress could not
under the Constitution authorize the Legislature of the Territory to establish such a
tribunal with such powers, but that it must be established by Congress itself; and that a
sale of cargo made under its order, to pay salvors, was void, as made without legal
authority, and passed no property to the purshaser.

It is in disposing of this objection that the sentence relied on occurs, and the court begin
that part of the opinion by stating with great precision the point which they are about to
decide.

They say: 'It has been contended that by the Constitution of the United States, the
judicial power of the United States extends to all cases of admiralty and maritime
jurisdiction; and that the whole of the judicial power must be vested 'in one Supreme
Court, and in such inferior courts as Congress shall from time to time ordain and
establish.' Hence it has been argued that Congress cannot vest admiralty jurisdiction in
courts created by the Territorial Legislature.'

And after thus clearly stating the point before them, and which they were about to
decide, they proceed to show that these Territorial tribunals were not constitutional
courts, but merely legislative, and that Congress might, therefore, delegate the power to
the Territorial Government to establish the court in question; and they conclude that
part of the opinion in the following words: 'Although admiralty jurisdiction can be
exercised in the States in those courts only which are established in pursuance of the
third article of the Constitution, the same limitation does not extend to the Territories.
In legislating for them, Congress exercises the combined powers of the General and
State Governments.'

Thus it will be seen by these quotations from the opinion, that the court, after stating
the question it was about to decide in a manner too plain to be misunderstood,
proceeded to decide it, and announced, as the opinion of the tribunal, that in organizing
the judicial department of the Government in a Territory of the United States, Congress
does not act under, and is not restricted by, the third article in the Constitution, and is
not bound, in a Territory, to ordain and establish courts in which the judges hold their
offices during good behaviour, but may exercise the discretionary power which a State
exercises in establishing its judicial department, and regulating the jurisdiction of its
courts, and may authorize the Territorial Government to establish, or may itself
establish, courts in which the judges hold their offices for a term of years only; and may
vest in them judicial power upon subjects confided to the judiciary of the United States.
And in doing this, Congress undoubtedly exercises the combined power of the General
and a State Government. It exercises the discretionary power of a State Government in
authorizing the establishment of a court in which the judges hold their appointments for
a term of years only, and not during good behaviour; and it exercises the power of the
General Government in investing that court with admiralty jurisdiction, over which the
General Government had exclusive jurisdiction in the Territory.

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No one, we presume, will question the correctness of that opinion; nor is there anything
in conflict with it in the opinion now given. The point decided in the case cited has no
relation to the question now before the court. That depended on the construction of the
third article of the Constitution, in relation to the judiciary of the United States, and the
power which Congress might exercise in a Territory in organizing the judicial
department of the Government. The case before us depends upon other and different
provisions of the Constitution, altogether separate and apart from the one above
mentioned.

The question as to what courts Congress may ordain or establish in a Territory to


administer laws which the Constitution authorizes it to pass, and what laws it is or is
not authorized by the Constitution to pass, are widely different-- are regulated by
different and separate articles of the Constitution, and stand upon different principles.
And we are satisfied that no one who reads attentively the page in Peters's Reports to
which we have referred, can suppose that the attention of the court was drawn for a
moment to the question now before this court, or that it meant in that case to say that
Congress had a right to prohibit a citizen of the United States from taking any property
which he lawfully held into a Territory of the United States.

This brings us to examine by what provision of the Constitution the present Federal
Government, under its delegated and restricted powers, is authorized to acquire territory
outside of the original limits of the United States, and what powers it may exercise
therein over the person or property of a citizen of the United States, while it remains a
Territory, and until it shall be admitted as one of the States of the Union.

There is certainly no power given by the Constitution to the Federal Government to


establish or maintain colonies bordering on the United States or at a distance, to be
ruled and governed at its own pleasure; nor to enlarge its territorial limits in any way,
except by the admission of new States. That power is plainly given; and if a new State
is admitted, it needs no further legislation by Congress, because the Constitution itself
defines the relative rights and powers, and duties of the State, and the citizens of the
State, and the Federal Government. But no power is given to acquire a Territory to be
held and governed permanently in that character.

And indeed the power exercised by Congress to acquire territory and establish a
Government there, according to its own unlimited discretion, was viewed with great
jealousy by the leading statesmen of the day. And in the Federalist, (No. 38,) written by
Mr. Madison, he speaks of the acquisition of the Northwestern Territory by the
confederated States, by the cession from Virginia, and the establishment of a
Government there, as an exercise of power not warranted by the Articles of
Confederation, and dangerous to the liberties of the people. And he urges the adoption
of the Constitution as a security and safeguard against such an exercise of power.

We do not mean, however, to question the power of Congress in this respect.

The power to expand the territory of the United States by the admission of new States

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is plainly given; and in the construction of this power by all the departments of the
Government, it has been held to authorize the acquisition of territory, not fit for
admission at the time, but to be admitted as soon as its population and situation would
entitle it to admission. It is acquired to become a State, and not to be held as a colony
and governed by Congress with absolute authority; and as the propriety of admitting a
new State is committed to the sound discretion of Congress, the power to acquire
territory for that purpose, to be held by the United States until it is in a suitable
condition to become a State upon an equal footing with the other States, must rest upon
the same discretion. It is a question for the political department of the Government, and
not the judicial; and whatever the political departent of the Government shall recognise
as within the limits of the United States, the judicial department is also bound to
recognise, and to administer in it the laws of the United States, so far as they apply, and
to maintain in the Territory the authority and rights of the Government, and also the
personal rights and rights of property of individual citizens, as secured by the
Constitution. All we mean to say on this point is, that, as there is no express regulation
in the Constitution defining the power which the General Government may exercise
over the person or property of a citizen in a Territory thus acquired, the court must
necessarily look to the provisions and principles of the Constitution, and its distribution
of powers, for the rules and principles by which its decision must be governed.

Taking this rule to guide us, it may be safely assumed that citizens of the United States
who migrate to a Territory belonging to the people of the United States, cannot be ruled
as mere colonists, dependent upon the will of the General Government, and to be
governed by any laws it may think proper to impose. The principle upon which our
Governments rest, and upon which alone they continue to exist, is the union of States,
sovereign and independent within their own limits in their internal and domestic
concerns, and bound together as one people by a General Government, possessing
certain enumerated and restricted powers, delegated to it by the people of the several
States, and exercising supreme authority within the scope of the powers granted to it,
throughout the dominion of the United States. A power, therefore, in the General
Government to obtain and hold colonies and dependent territories, over which they
might legislate without restriction, would be inconsistent with its own existence in its
present form. Whatever it acquires, it acquires for the benefit of the people of the
several States who created it. It is their trustee acting for them, and charged with the
duty of promoting the interests of the whole people of the Union in the exercise of the
powers specifically granted.

At the time when the Territory in question was obtained by cession from France, it
contained no population fit to be associated together and admitted as a State; and it
therefore was absolutely necessary to hold possession of it, as a Territory belonging to
the United States, until it was settled and inhabited by a civilized community capable of
self-government, and in a condition to be admitted on equal terms with the other States
as a member of the Union. But, as we have before said, it was acquired by the General
Government, as the representative and trustee of the people of the United States, and it
must therefore be held in that character for their common and equal benefit; for it was
the people of the several States, acting through their agent and representative, the
Federal Government, who in fact acquired the Territory in question, and the

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Government holds it for their common use until it shall be associated with the other
States as a member of the Union.

But until that time arrives, it is undoubtedly necessary that some Government should be
established, in order to organize society, and to protect the inhabitants in their persons
and property; and as the people of the United States could act in this matter only
through the Government which represented them, and the through which they spoke
and acted when the Territory was obtained, it was not only within the scope of its
powers, but it was its duty to pass such laws and establish such a Government as would
enable those by whose authority they acted to reap the advantages anticipated from its
acquisition, and to gather there a population which would enable it to assume the
position to which it was destined among the States of the Union. The power to acquire
necessarily carries with it the power to preserve and apply to the purposes for which it
was acquired. The form of government to be established necessarily rested in the
discretion of Congress. It was their duty to establish the one that would be best suited
for the protection and security of the citizens of the United States, and other inhabitants
who might be authorized to take up their abode there, and that must always depend
upon the existing condition of the Territory, as to the number and character of its
inhabitants, and their situation in the Territory. In some cases a Government, consisting
of persons appointed by the Federal Government, would best subserve the interests of
the Territory, when the inhabitants were few and scattered, and new to one another. In
other instances, it would be more advisable to commit the powers of self-government to
the people who had settled in the Territory, as being the most competent to determine
what was best for their own interests. But some form of civil authority would be
absolutely necessary to organize and preserve civilized society, and prepare it to become
a State; and what is the best form must always depend on the condition of the Territory
at the time, and the choice of the mode must depend upon the exercise of a
discretionary power by Congress, acting within the scope of its constitutional authority,
and not infringing upon the rights of person or rights of property of the citizen who
might go there to reside, or for any other lawful purpose.

It was acquired by the exercise of this discretion, and it must be held and governed in
like manner, until it is fitted to be a State.

But the power of Congress over the person or property of a citizen can never be a mere
discretionary power under our Constitution and form of Government.

The powers of the Government and the rights and privileges of the citizen are regulated
and plainly defined by the Constitution itself. And when the Territory becomes a part of
the United States, the Federal Government enters into possession in the character
impressed upon it by those who created it. It enters upon it with its powers over the
citizen strictly defined, and limited by the Constitution, from which it derives its own
existence, and by virtue of which alone it continues to exist and act as a Government
and sovereignty. It has no power of any kind beyond it; and it cannot, when it enters a
Territory of the United States, put off its character, and assume discretionary or despotic
powers which the Constitution has denied to it. It cannot create for itself a new

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character separated from the citizens of the United States, and the duties it owes them
under the provisions of the Constitution. The Territory being a part of the United
States, the Government and the citizen both enter it under the authority of the
Constitution, with their respective rights defined and marked out; and the Federal
Government can exercise no power over his person or property, beyond what that
instrument confers, nor lawfully deny any right which it has reserved.

A reference to a few of the provisions of the Constitution will illustrate this proposition.

For example, no one, we presume, will contend that Congress can make any law in a
Territory respecting the establishment of religion, or the free exercise thereof, or
abridging the freedom of speech or of the press, or the right of the people of the
Territory peaceably to assemble, and to petition the Government for the redress of
grievances.

Nor can Congress deny to the people the right to keep and bear arms, nor the right to
trial by jury, nor compel any one to be a witness against himself in a criminal
proceeding.

These powers, and others, in relation to rights of person, which it is not necessary here
to enumerate, are, in express and positive terms, denied to the General Government;
and the rights of private property have been guarded with equal care. Thus the rights of
property are united with the rights of person, and placed on the same ground by the fifth
amendment to the Constitution, which provides that no person shall be deprived of life,
liberty, and property, without due process of law. And an act of Congress which
deprives a citizen of the United States of his liberty or property, merely because he came
himself or brought his property into a particular Territory of the United States, and who
had committed no offence against the laws, could hardly be dignified with the name of
due process of law.

So, too, it will hardly be contended that Congress could by law quarter a soldier in a
house in a Territory without the consent of the owner, in time of peace; nor in time of
war, but in a manner prescribed by law. Nor could they by law forfeit the property of a
citizen in a Territory who was convicted of treason, for a longer period than the life of
the person convicted; nor take private property for public use without just
compensation.

The powers over person and property of which we speak are not only not granted to
Congress, but are in express terms denied, and they are forbidden to exercise them. And
this prohibition is not confined to the States, but the words are general, and extend to
the whole territory over which the Constitution gives it power to legislate, including
those portions of it remaining under Territorial Government, as well as that covered by
States. It is a total absence of power everywhere within the dominion of the United
States, and places the citizens of a Territory, so far as these rights are concerned, on the
same footing with citizens of the States, and guards them as firmly and plainly against
any inroads which the General Government might attempt, under the plea of implied or

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incidental powers. And if Congress itself cannot do this -- if it is beyond the powers
conferred on the Federal Government -- it will be admitted, we presume, that it could
not authorize a Territorial Government to exercise them. It could confer no power on
any local Government, established by its authority, to violate the provisions of the
Constitution.

It seems, however, to be supposed, that there is a difference between property in a slave


and other property, and that different rules may be applied to it in expounding the
Constitution of the United States. And the laws and usages of nations, and the writings
of eminent jurists upon the relation of master and slave and their mutual rights and
duties, and the powers which Governments may exercise over it, have been dwelt upon
in the argument.

But in considering the question before us, it must be borne in mind that there is no law
of nations standing between the people of the United States and their Government, and
interfering with their relation to each other. The powers of the Government, and the
rights of the citizen under it, are positive and practical regulations plainly written down.
The people of the United States have delegated to it certain enumerated powers, and
forbidden it to exercise others. It has no power over the person or property of a citizen
but what the citizens of the United States have granted. And no laws or usages of other
nations, or reasoning of statesmen or jurists upon the relations of master and slave, can
enlarge the powers of the Government, or take from the citizens the rights they have
reserved. And if the Constitution recognises the right of property of the master in a
slave, and makes no distinction between that description of property and other property
owned by a citizen, no tribunal, acting under the authority of the United States, whether
it be legislative, executive, or judicial, has a right to draw such a distinction, or deny to
it the benefit of the provisions and guarantees which have been provided for the
protection of private property against the encroachments of the Government.

Now, as we have already said in an earlier part of this opinion, upon a different point,
the right of property in a slave is distinctly and expressly affirmed in the Constitution.
The right to traffic in it, like an ordinary article of merchandise and property, was
guarantied to the citizens of the United States, in every State that might desire it, for
twenty years. And the Government in express terms is pledged to protect it in all future
time, if the slave escapes from his owner. This is done in plain words--too plain to be
misunderstood. And no word can be found in the Constitution which gives Congress a
greater power over slave property, or which entitles property of that kind to less
protection that property of any other description. The only power conferred is the power
coupled with the duty of guarding and protecting the owner in his rights.

We have so far examined the case, as it stands under the Constitution of the United
States, and the powers thereby delegated to the Federal Government.

But there is another point in the case which depends on State power and State law. And
it is contended, on the part of the plaintiff, that he is made free by being taken to Rock
Island, in the State of Illinois, independently of his residence in the territory of the

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United States; and being so made free, he was not again reduced to a state of slavery by
being brought back to Missouri.

Our notice of this part of the case will be very brief; for the principle on which it
depends was decided in this court, upon much consideration, in the case of Strader et al.
v. Graham, reported in 10th Howard, 82. In that case, the slaves had been taken from
Kentucky to Ohio, with the consent of the owner, and afterwards brought back to
Kentucky. And this court held that their status or condition, as free or slave, depended
upon the laws of Kentucky, when they were brought back into that State, and not of
Ohio; and that this court had no jurisdiction to revise the judgment of a State court
upon its own laws. This was the point directly before the court, and the decision that
this court had not jurisdiction turned upon it, as will be seen by the report of the case.

So in this case. As Scott was a slave when taken into the State of Illinois by his owner,
and was there held as such, and brought back in that character, his status, as free or
slave, depended on the laws of Missouri, and not of Illinois.

It has, however, been urged in the argument, that by the laws of Missouri he was free
on his return, and that this case, therefore, cannot be governed by the case of Strader et
al. v. Graham, where it appeared, by the laws of Kentucky, that the plaintiffs continued
to be slaves on their return from Ohio. But whatever doubts or opinions may, at one
time, have been entertained upon this subject, we are satisfied, upon a careful
examination of all the cases decided in the State courts of Missouri referred to, that it is
now firmly settled by the decisions of the highest court in the State, that Scott and his
family upon their return were not free, but were, by the laws of Missouri, the property of
the defendant; and that the Circuit Court of the United States had no jurisdiction,
when, by the laws of the State, the plaintiff was a slave, and not a citizen.

Moreover, the plaintiff, it appears, brought a similar action against the defendant in the
State court of Missouri, claiming the freedom of himself and his family upon the same
grounds and the same evidence upon which hw relies in the case before the court. The
case was carried before the Supreme Court of the State; was fully argued there; and that
court decided that neither the plaintiff nor his family were entitled to freedom, and were
still the slaves of the defendant; and reversed the judgment of the inferior State court,
which had given a different decision. If the plaintiff supposed that this judgment of the
Supreme Court of the State was erroneous, and that this court had jurisdiction to revise
and reverse it, the only mode by which he could legally bring it before this court was by
writ of error directed to the Supreme Court of the State, requiring it to transmit the
record to this court. If this had been done, it is too plain for argument that the writ must
have been dismissed for want of jurisdiction in this court. The case of Strader and others
v. Graham is directly in point; and, indeed, independent of any decision, the language of
the 25th section of the act of 1789 is too clear and precise to admit of controversy.

But the plaintiff did not pursue the mode prescribed by law for bringing the judgment of
a State court before this court for revision, but suffered the case to be remanded to the
inferior State court, where it is still continued, and is, by agreement of parties, to await

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the judgment of this court on the point.

All of this appears on the record before us, and by the printed report of the case.

And while the case is yet open and pending in the inferior State court, the plaintiff goes
into the Circuit Court of the United States, upon the same case and the same evidence,
and against the same party, and proceeds to judgment, and then brings here the same
case from the Circuit Court, which the law would not have permitted him to bring
directly from the State court. And if this court takes jurisdiction in this form, the result,
so far as the rights of the respective parties are concerned, is in every respect
substantially the same as if it had in open violation of law entertained jurisdiction over
the judgment of the State court upon a writ of error, and revised and reversed its
judgment upon the ground that its opinion upon the question of law was erroneous. It
would ill become this court to sanction such an attempt to evade the law, or to exercise
an appellate power in this circuitous way, which it is forbidden to exercise in the direct
and regular and invariable forms of judicial proceedings.

Upon the whole, therefore, it is the judgment of this court, that it appears by the record
before us that the plaintiff in error is not a citizen of Missouri, in the sense in which that
word is used in the Constitution; and that the Circuit Court of the United States, for
that reason, had no jurisdiction in the case, and could give no judgment in it. Its
judgment for the defendant must, consequently, be reversed, and a mandate issued,
directing the suit to be dismissed for want of jurisdiction.

Mr. Justice WAYNE.

Concurring as I do entirely in the opinion of the court, as it has been written and read by
the Chief Justice--without any qualification of its reasoning or its conclusions -- I shall
neither read nor file an opinion of my own in this case, which I prepared when I
supposed it might be necessary and proper for me to do so.

The opinion of the court meets fully and decides every point which was made in the
argument of the case by the counsel on either side of it. Nothing belonging to the case
has been left undecided, nor has any point been discussed and decided which was not
called for by the record, or which was not necessary for the judicial disposition of it, in
the way that it has been done, by more than a majority of the court.

In doing this, the court neither sought nor made the case. It was brought to us in the
course of that administration of the laws which Congress has enacted, for the review of
cases from the Circuit Courts by the Supreme Court.

In our action upon it, we have only discharged our duty as a distinct and efficient
department of the Government, as the framers of the Constitution meant the judiciary to
be, and as the States of the Union and the people of those States intended it should be,
when they ratified the Constitution of the United States.

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The case involves private rights of value, and constitutional principles of the highest
importance, about which there had become such a difference of opinion, that the peace
and harmoney of the country required the settlement of them by judicial decision.

It would certainly be a subject of regret, that the conclusions of the court have not been
assented to by all of its members, if I did not know from its history and my own
experience how rarely it has happened that the judges have been unanimous upon
constitutional questions of moment, and if our decision in this case had not been made
by as large a majority of them as has been usually had on constitutional questions of
importance.

OPINION

Two of the judges, Mr. Justices McLean and Curtis, dissent from the opinion of the
court. A third, Mr. Justice Nelson, gives a separate opinion upon a single point in the
case, with which I concur, assuming that the Circuit Court had jurisdiction; but he
abstains altogether from expressing any opinion upon the eighth section of the act of
1820, known commonly as the Missouri Compromise law, and six of us declare that it
was unconstitutional.

But it has been assumed, that this court has acted extra-judicially in giving an opinion
upon the eighth section of the act of 1820, because, as it has decided that the Circuit
Court had no jurisdiction of the case, this court had no jurisdiction to examine the case
upon its merits.

But the error of such an assertion has arisen in part from a misapprehension of what has
been heretofore decided by the Supreme Court, in cases of a like kind with that before
us; in part, from a misapplication to the Circuit Courts of the United States, of the rules
of pleading concerning pleas to the jurisdiction which prevail in common-law courts;
and from its having been forgotten that this case was not brought to this court by appeal
or writ of error from a State court, but by a writ of error to the Circuit Court of the
United States.

The cases cited by the Chief Justice to show that this court has now only done what it
has repeatedly done before in other cases, without any question of its correctness, speak
for themselves. The differences between the rules concerning pleas to the jurisdiction in
the courts of the United States and common-law courts have been stated and sustained
by reasoning and adjudged cases; and it has been shown that writs of error to a State
court and to the Circuit Courts of the United States are to be determined by different
laws and principles. In the first, it is our duty to ascertain if this court has jurisdiction,
under the twenty-fifth section of the judiciary act, to review the case from the State
court; and if it shall be found that it has not, the case is at end, so far as this court is
concerned; for our power to review the case upon its merits has been made, by the
twenty-fifth section, to depend upon its having jurisdiction; when it has not, this court
cannot criticise, controvert, or give any opinion upon the merits of a case from a State
court.

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But in a case brought to this court, by appeal or by writ of error from a Circuit Court of
the United States, we begin a review of it, not by inquiring if this court has jurisdiction,
but if that court has it. If the case has been decided by that court upon its merits, but the
record shows it to be deficient in those averments which by the law of the United States
must be made by the plaintiff in the action, to give the court jurisdiction of his case, we
send it back to the court from which it was brought, with directions to be dismissed,
though it has been decided there upon its merits.

So, in a case containing the averments by the plaintiff which are necessary to give the
Circuit Court jurisdiction, if the defendant shall file his plea in abatement denying the
truth of them, and the plaintiff shall demur to it, and the court should erroneously
sustain the plaintiff's demurrer, or declare the plea to be insufficient, and by doing so
require the defendant to answer over by a plea to the merits, and shall decide the case
upon such pleading, this court has the same authority to inquire into the jurisdiction of
that court to do so, and to correct its error in that regard, that it had in the other case to
correct its error, in trying a case in which the plaintiff had not made those averments
which were necessary to give the court jurisdiction. In both cases the record is resorted
to, be determine the point of jurisdiction; but, as the power of review of cases from a
Federal court, by this court, is not limited by the law to a part of the case, this court may
correct an error upon the merits; and there is the same reason for correcting an
erroneous judgment of the Circuit Court, where the want of jurisdiction appears from
any part of the record, that there is for declaring a want of jurisdiction for a want of
necessary averments. And attempt to control the court from doing so by the technical
common-law rules of pleading in cases of jurisdiction, when a defendant has been
denied his plea to it, would tend to enlarge the jurisdiction of the Circuit Court, by
limiting this court's review of its judgments in that particular. But I will not argue a
point already so fully discussed. I have every confidence in the opinion of the court upon
the point of jurisdiction, and do not allow myself to doubt that the error of a contrary
conclusion will be fully understood by all who shall read the argument of the Chief
Justice.

I have already said that the opinion of the court has my unqualified assent.

Mr. Justice NELSON.

I shall proceed to state the grounds upon which I have arrived at the conclusion, that
the judgment of the court below should be affirmed. The suit was brought in the court
below by the plaintiff, for the purpose of asserting his freedom, and that of Harriet, his
wife, and two children.

The defendant plead, in abatement to the suit, that the cause of action, if any, accrued
to the plaintiff out of the jurisdiction of the court, and exclusively within the jurisdiction
of the courts of the State of Missouri; for, that the said plaintiff is not a citizen of the
State of Missouri, as alleged in the declaration, because he is a negro of African descent;
his ancestors were of pure African blood, and were brought into this country and sold as
negro slaves.

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To this plea the plaintiff demurred, and the defendant joined in demurrer. The court
below sustained the demurrer, holding that the plea was insufficient in law to abate the
suit.

The defendant then plead over in bar of the action:

1. The general issue.

2. That the plaintiff was a negro slave, the lawful property of the defendant. And 3.
That Harriet, the wife of said plaintiff, and the two children, were the lawful slaves of
the said defendant. Issue was taken upon these pleas, and the cause went down to trial
before the court and jury, and an agreed state of facts was presented, upon which the
trial proceeded, and resulted in a verdict for the defendant, under the instructions of the
court.

The facts agreed upon were substantially as follows: That in the year 1834, the plaintiff,
Scott, was a negro slave of Dr. Emerson, who was a surgeon in the army of the United
States; and in that year he took the plaintiff from the State of Missouri to the military
post at Rock Island, in the State of Illinois, and held him there as a slave until the month
of April or May, 1836. At this date, Dr. Emerson removed, with the plaintiff, from the
Rock Island post to the military post at Fort Snelling, situate on the west bank of the
Mississippi river, in the Territory of Upper Louisiana, and north of the latitude thirty-six
degrees thirty minutes, and north of the State of Missouri. That he held the plaintiff in
slavery, at Fort Snelling, from the last-mentioned date until the year 1838.

That in the year 1835, Harriet, mentioned in the declaration, was a negro slave of Major
Taliaferro, who belonged to the army of the United States; and in that year he took her
to Fort Snelling, already mentioned, and kept her there as a slave until the year 1836,
and then sold and delivered her to Dr.

Emerson, who held her in slavery, at Fort Snelling, until the year 1838. That in the year
1836, the plaintiff and Harriet were married, at Fort Snelling, with the consent of their
master. The two children, Eliza and Lizzie, are the fruit of this marriage. The first is
about fourteen years of age, and was born on board the steamboat Gipsey, north of the
State of Missouri, and upon the Mississippi river; the other, about seven years of age,
was born in the State of Missouri, at the military post called Jefferson Barracks.

In 1838, Dr. Emerson removed the plaintiff, Harriet, and their daughter Eliza, from Fort
Snelling to the State of Missouri, where they have ever since resided. And that, before
the commencement of this suit, they were sold by the Doctor to Sandford, the
defendant, who has claimed and held them as slaves ever since.

The agreed case also states that the plaintiff brought a suit for his freedom, in the
Circuit Court of the State of Missouri, on which a judgment was rendered in his favor;
but that, on a writ of error from the Supreme Court of the State, the judgment of the
court below was reversed, and the cause remanded to the circuit for a new trial.

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On closing the testimony in the court below, the counsel for the plaintiff prayed the
court to instruct the jury, upon the agreed state of facts, that they ought to find for the
plaintiff; when the court refused, and instructed them that, upon the facts, the law was
with the defendant.

With respect to the plea in abatement, which went to the citizenship of the plaintiff, and
his competency to bring a suit in the Federal courts, the common-law rule of pleading is,
that upon a judgment against the plea on demurrer, and that the defendant answer over,
and the defendant submits to the judgment, and pleads over to the merits, the plea in
abatement is deemed to be waived, and is not afterwards to be regarded as a part of the
record in deciding upon the rights regarded as a part of the record in deciding upon the
rights of the parties. There is some question, however, whether this rule of pleading
applies to the peculiar system and jurisdiction of the Federal courts.

As, in these courts, if the facts appearing on the record show that the Circuit Court had
no jurisdiction, its judgment will be reversed in the appellate court for that cause, and
the case remanded with directions to be dismissed.

In the view we have taken of the case, it will not be necessary to pass upon this
question, and we shall therefore proceed at once to an examination of the case upon its
merits. The question upon the merits, in general terms, is, whether or not the removal of
the plaintiff, who was a slave, with his master, from the State of Missouri to the State
of Illinois, with a view to a temporary residence, and after such residence and return to
the slave State, such residence in the free State works an emancipation.

As appears from an agreed statement of facts, this question has been before the highest
court of the State of Missouri, and a judgment rendered that this residence in the free
State has no such effect; but, on the contrary, that his original condition continued
unchanged.

The court below, the Circuit Court of the United States for Missouri, in which this suit
was afterwards brought, followed the decision of the State court, and rendered a like
judgment against the plaintiff.

The argument against these decisions is, that the laws of Illinois, forbidding slavery
within her territory, had the effect to set the slave free while residing in that State, and
to impress upon him the condition and status of a freeman; and that, by force of these
laws, this status and condition accompanied him on his return to the slave State, and of
consequence he could not be there held as a slave.

This question has been examined in the courts of several of the slaveholding States, and
different opinions expressed and conclusions arrived at. We shall hereafter refer to some
of them, and to the principles upon which they are founded. Our opinion is, that the
question is one which belongs to each State to decide for itself, either by its Legislature
or courts of justice; and hence, in respect to the case before us, to the State of Missouri

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-- a question exclusively of Missouri law, and which, when determined by that State, it
is the duty of the Federal courts to follow it. In other words, except in cases where the
power is restrained by the Constitution of the United States, the law of the State is
supreme over the subject of slavery within its jurisdiction.

As a practical illustration of the principle, we may refer to the legislation of the free
States in abolishing slavery, and prohibiting its introduction into their territories.
Confessedly, except as restrained by the Federal Constitution, they exercised, and
rightfully, complete and absolute power over the subject. Upon what principle, then,
can it be denied to the State of Missouri? The power flows from the sovereign character
of the States of the Union; sovereign, not merely as respects the Federal Government --
except as they have consented to its limitation -- but sovereign as respects each other.

Whether, therefore, the State of Missouri will recognise or give effect to the laws of
Illinois within her territories on the subject of slavery, is a question for her to determine.
Nor is there any constitutional power in this Government that can rightfully control her.

Every State or nation possesses an exclusive sovereignty and jurisdiction within her
own territory; and, her laws affect and bind all property and persons residing within it. It
may regulate the manner and circumstances under which property is held, and the
condition, capacity, and state, of all persons therein; and, also, the remedy and modes of
administering justice. And it is equally true, that no State or nation can affect or bind
property out of its territory, or persons not residing within it. No State, therefore, can
enact laws to operate beyond its own dominions, and, if it attempts to do so, it may be
lawfully refused obedience. Such laws can have no inherent authority extra-territorially.
This is the necessary result of the independence of distinct and separate sovereignties.

Now, it follows from these principles, that whatever force or effect the laws of one
State or nation may have in the territories of another, must depend solely upon the laws
and municipal regulations of the latter, upon its own jurisprudence and polity, and upon
its own express or tacit consent.

Judge Story observes, in his Conflict of Laws, (p. 24,) 'that a State may prohibit the
operation of all foreign laws, and the rights growing out of them, within its territories.'
'And that when its code speaks positively on the subject, it must be obeyed by all
persons who are within reach of its sovereignty; when its customary unwritten or
common law speaks directly on the subject, it is equally to be obeyed.'

Nations, from convenience and comity, and from mutual interest, and a sort of moral
necessity to do justice, recognise and administer the laws of other countries. But, of the
nature, extent, and utility, of them, respecting property, or the state and condition of
persons within her territories, each nation judges for itself; and is never bound, even
upon the ground of comity, to recognise them, if prejudicial to her own interests. The
recognition is purely from comity, and not from any absolute or paramount obligation.

Judge Story again observes, (398) 'that the true foundation and extent of the obligation

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of the laws of one nation within another is the voluntary consent of the latter, and is
inadmissible when they are contrary to its known interests.' And he adds, 'in the silence
of any positive rule affirming or denying or restraining the operation of the foreign laws,
courts of justice presume the tacit adoption of them by their own Government, unless
they are repugnant to its policy or prejudicial to its interests.' (See also 2 Kent Com., p.
457; 13 Peters, 519, 589.) These principles fully establish, that it belongs to the
sovereign State of Missouri to determine by her laws the question of slavery within her
jurisdiction, subject only to such limitations as may be found in the Federal
Constitution; and, further, that the laws of other States of the Confederacy, whether
enacted by their Legislatures or expounded by their courts, can have no operation
within her territory, or affect rights growing out of her own laws on the subject. This is
the necessary result of the independent and sovereign character of the State. The
principle is not peculiar to the State of Missouri, but is equally applicable to each State
belonging to the Confederacy. The laws of each have no extra-territorial operation
within the jurisdiction of another, except such as may be voluntarily conceded by her
laws or courts of justice. To the extent of such concession upon the rule of comity of
nations, the foreign law may operate, as it then becomes a part of the municipal law of
the State. When determined that the foreign law shall have effect, the municipal law of
the State retires, and gives place to the foreign law.

In view of these principles, let us examine a little more closely the doctrine of those who
maintain that the law of Missouri is not to govern the status and condition of the
plaintiff. They insist that the removal and temporary residence with his master in
Illinois, where slavery is inhibited, had the effect to set him free, and that the same
effect is to be given to the law of Illinois, within the State of Missouri, after his return.
Why was he set free in Illinois? Because the law of Missouri, under which he was held
as a slave, had no operation by its own force extra-territorially; and the State of Illinois
refused to recognise its effect within her limits, upon principles of comity, as a state of
slavery was inconsistent with her laws, and contrary to her policy. But, how is the case
different on the return of the plaintiff to the State of Missouri? Is she bound to
recognise and enforce the law of Illinois? For, unless she is, the status and condition of
the slave upon his return remains the same as originally existed. Has the law of Illinois
any greater force within the jurisdiction of Missouri, than the laws of the latter within
that of the former? Certainly not. They stand upon an equal footing.

Neither has any force extra-territorially, except what may be voluntarily conceded to
them.

It has been supposed, by the counsel for the plaintiff, that a rule laid down by Huberus
had some bearing upon this question. Huberus observes that 'personal qualities,
impressed by the laws of any place, surround and accompany the person wherever he
goes, with this effect: that in every place he enjoys and is subject to the same law which
other persons of his class elsewhere enjoy or are subject to.' (De Confl. Leg., lib. 1, tit.
3, sec. 12; 4 Dallas, 375 n.; 1 Story Con. Laws, pp. 59, 60.) The application sought to
be given to the rule was this: that as DRED SCOTT was free while residing in the
State of Illinois, by the laws of that State, on his return to the State of Missouri he

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carried with him the personal qualities of freedom, and that the same effect must be
given to his status there as in the former State. But the difficulty in the case is in the
total misapplication of the rule.

These personal qualities, to which Huberus refers, are those impressed upon the
individual by the law of the domicil; it is this that the author claims should be permitted
to accompany the person into whatever country he might go, and should supersede the
law of the place where he had taken up a temporary residence.

Now, as the domicil of Scott was in the State of Missouri, where he was a slave, and
from whence he was taken by his master into Illinois for a temporary residence,
according to the doctrine of Huberus, the law of his domicil would have accompanied
him, and during his residence there he would remain in the same condition as in the
State of Missouri. In order to have given effect to the rule, as claimed in the argument,
it should have been first shown that a domicil had been acquired in the free State, which
cannot be pretended upon the agreed facts in the case. But the true answer to the
doctrine of Huberus is, that the rule, in any aspect in which it may be viewed, has no
bearing upon either side of the question before us, even if conceded to the extent laid
down by the author; for he admits that foreign Governments give effect to these laws of
the domicil no further than they are consistent with their own laws, and not prejudicial
to their own subjects; in other words, their force and effect depend upon the law of
comity of the foreign Government. We should add, also, that this general rule of
Huberus, referred to, has not been admitted in the practice of nations, nor is it
sanctioned by the most approved jurists of international law. (Story Con., sec. 91, 96,
103, 104; 2 Kent. Com., p. 457, 458; 1 Burge Con. Laws, pp. 12, 127.)

We come now to the decision of this court in the case of Strader et al. V. Graham, (10
How., p. 2.) The case came up from the Court of Appeals, in the State of Kentucky.
The question in the case was, whether certain slaves of Graham, a resident of Kentucky,
who had been employed temporarily at several places in the State of Ohio, with their
master's consent, and had returned to Kentucky into his service, had thereby become
entitled to their freedom. The Court of Appeals held that they had not. The case was
brought to this court under the twenty-fifth section of the judiciary act. This court held
that it had no jurisdiction, for the reason, the question was one that belonged
exclusively to the State of Kentucky. The Chief Justice, in delivering the opinion of the
court, observed that 'every State has an undoubted right to determine the status or
domestic and social condition of the persons domiciled within its territory, except in so
far as the powers of the States in this respect are restrained, or duties and obligations
imposed upon them, by the Constitution of the United States. There is nothing in the
Constitution of the United States, he observes, that can in any degree control the law of
Kentucky upon this subject. And the condition of the negroes, therefore, as to freedom
or slavery, after their return, depended altogether upon the laws of that State, and could
not be influenced by the laws of Ohio. It was exclusively in the power of Kentucky to
determine, for herself, whether their employment in another State should or should not
make them free on their return.' It has been supposed, in the argument on the part of the
plaintiff, that the eighth section of the act of Congress passed March 6, 1820, (3 St. at

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Large, p. 544,) which prohibited slavery north of thirty-six degrees thirty miutes, within
which the plaintiff and his wife temporarily resided at Fort Snelling, possessed some
superior virtue and effect, extra-territorially, and within the State of Missouri, beyond
that of the laws of Illinois, or those of Ohio in the case of Strader et al. v. Graham. A
similar ground was taken and urged upon the court in the case just mentioned, under the
ordinance of 1787, which was enacted during the time of the Confederation, and
reenacted by Congress after the adoption of the Constitution, with some amendments
adapting it to the new Government. (1 St. at Large, p. 50.)

In answer to this ground, the Chief Justice, in delivering the opinion of the court,
observed: 'The argument assumes that the six articles which that ordinance declares to
be perpetual, are still in force in the States since formed within the territory, and
admitted into the Union. If this proposition could be maintained, it would not alter the
question; for the regulations of Congress, under the old Confederation or the present
Constitution, for the government of a particular Territory, could have no force beyond
its limits. It certainly could not restrict the power of the States, within their respective
territories, nor in any manner interfere with their laws and institutions, nor give this
court control over them.

'The ordinance in question, he observes, if still in force, could have no more operation
than the laws of Ohio in the State of Kentucky, and could not influence the decision
upon the rights of the master or the slaves in that State.'

This view, thus authoritatively declared, furnishes a conclusive answer to the distinction
attempted to be set up between the extra-territorial effect of a State law and the act of
Congress in question.

It must be admitted that Congress possesses no power to regulate or abolish slavery


within the States; and that, if this act had attempted any such legislation, it would have
been a nullity. And yet the argument here, if there be any force in it, leads to the result,
that effect may be given to such legislation; for it is only by giving the act of Congress
operation within the State of Missouri, that it can have any effect upon the question
between the parties. Having no such effect directly, it will be difficult to maintain, upon
any consistent reasoning, that it can be made to operate indirectly upon the subject.

The argument, we think, in any aspect in which it may be viewed, is utterly destitute of
support upon any principles of constitutional law, as, according to that, Congress has no
power whatever over the subject of slavery within the State; and is also subversive of
the established doctrine of international jurisprudence, as, according to that, it is an
axiom that the laws of one Government have no force within the limits of another, or
extra-territorially, except from the consent of the latter.

It is perhaps not unfit to notice, in this connection, that many of the most eminent
statesmen and jurists of the country entertain the opinion that this provision of the act
of Congress, even within the territory to which it relates, was not authorized by any
power under the Constitution. The doctrine here contended for, not only upholds its

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validity in the territory, but claims for it effect beyond and within the limits of a
sovereign State--an effect, as insisted, that displaces the laws of the State, and
substitutes its own provisions in their place.

The consequences of any such construction are apparent. If Congress possesses the
power, under the Constitution, to abolish slavery in a Territory, it must necessarily
possess the like power to establish it. It cannot be a one-sided power, as may suit the
convenience or particular views of the advocates. It is a power, if it exists at all, over
the whole subject; and then, upon the process of reasoning which seeks to extend its
influence beyond the Territory, and within the limits of a State, if Congress should
establish, instead of abolish, slavery, we do not see but that, if a slave should be
removed from the Territory into a free State, his status would accompany him, and
continue, notwithstanding its laws against slavery. The laws of the free State, according
to the argument, would be displaced, and the act of Congress, in its effect, be
substituted in their place. We do not see how this conclusion could be avoided, if the
construction against which we are contending should prevail.

We are satisfied, however, it is unsound, and that the true answer to it is, that even
conceding, for the purposes of the argument, that this provision of the act of Congress
is valid within the Territory for which it was enacted, it can have no operation or effect
beyond its limits, or within the jurisdiction of a State. It can neither displace its laws,
nor change the status or condition of its inhabitants.

Our conclusion, therefore, is, upon this branch of the case, that the question involved is
one depending solely upon the law of Missouri, and that the Federal court sitting in the
State, and trying the case before us, was bound to follow it.

The remaining question for consideration is, What is the law of the State of Missouri on
this subject? And it would be a sufficient answer to refer to the judgment of the highest
court of the State in the very case, were it not due to that tribunal to state somewhat at
large the course of decision and the principles involved, on account of some diversity of
opinion in the cases. As we have already stated, this case was originally brought in the
Circuit Court of the State, which resulted in a judgment for the plaintiff. The case was
carried up to the Supreme Court for revision. That court reversed the judgment below,
and remanded the cause to the circuit, for a new trial. In that state of the proceeding, a
new suit was brought by the plaintiff in the Circuit Court of the United States, and tried
upon the issues and agreed case before us, and a verdict and judgment for the
defendant, that court following the decision of the Supreme Court of the State. The
judgment of the Supreme Court is reported in the 15 Misso. R., p. 576. The court
placed the decision upon the temporary residence of the master with the slaves in the
State and Territory to which they removed, and their return to the slave State; and upon
the principles of international law, that foreign laws have no extra-territorial force,
except such as the State within which they are sought to be enforced may see fit to
extend to them, upon the doctrine of comity of nations.

This is the substance of the grounds of the decision.

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The same question has been twice before that court since, and the same judgment
given, (15 Misso. R., 595; 17 Ib., 434.) It must be admitted, therefore, as the settled law
of the State, and, according to the decision in the case of Strader et al. v. Graham, is
conclusive of the case in this court.

It is said, however, that the previous cases and course of decision in the State of
Missouri on this subject were different, and that the courts had held the slave to be free
on his return from a temporary residence in the free State. We do not see, were this to
be admitted, that the circumstance would show that the settled course of decision, at
the time this case was tried in the court below, was not to be considered the law of the
State. Certainly, it must be, unless the first decision of a principle of law by a State
court is to be permanent and irrevocable. The idea seems to be, that the courts of a
State are not to change their opinions, or, if they do, the first decision is to be regarded
by this court as the law of the State. It is certain, if this be so, in the case before us, it is
an exception to the rule governing this court in all other cases. But what court has not
changed its opinions? What judge has not changed his?

Waiving, however, this view, and turning to the decisions of the courts of Missouri, it
will be found that there is no discrepancy between the earlier and the present cases upon
this subject. There are some eight of them reported previous to the decision in the case
before us, which was decided in 1852. The last of the earlier cases was decided in 1836.
In each one of these, with two exceptions, the master or mistress removed into the free
State with the slave, with a view to a permanent residence -- in other words, to make
that his or her domicil. And in several of the cases, this removal and permanent
residence were relied on, as the ground of the decision in favor of the plaintiff. All these
cases, therefore, are not necessarily in conflict with the decision in the case before us,
but consistent with it. In one of the two excepted cases, the master had hired the slave
in the State of Illinois from 1817 to 1825. In the other, the master was an officer in the
army, and removed with his slave to the military post of Fort Snelling, and at Prairie du
Chien, in Michigan, temporarily, while acting under the orders of his Government. It is
conceded the decision in this case was departed from in the case before us, and in those
that have followed it. But it is to be observed that these subsequent cases are in
conformity with those in all the slave States bordering on the free--in Kentucky, (2
Marsh., 476; 5 B. Munroe, 176; 9 Ib., 565) -- in Virginia, (1 Rand., 15; 1 Leigh, 172; 10
Grattan, 495)--in Maryland, (4 Harris and McHenry, 295, 322, 325.) In conformity, also,
with the law of England on this subject, Ex parte Grace, (2 Hagg. Adm., R., 94,) and
with the opinions of the *467 most eminent jurists of the country. (Story's Confl., 396 a;
2 Kent Com., 258 n.; 18 Pick., 193, Chief Justice Shaw. See Corresp. between Lord
Stowell and Judge Story, 1 vol. Life of Story, p. 552, 558.)

Lord Stowell, in communicating his opinion in the case of the slave Grace to Judge
Story, states, in his letter, what the question was before him, namely: 'Whether the
emancipation of a slave brought to England insured a complete emancipation to him on
his return to his own country, or whether it only operated as a suspension of slavery in
England, and his original character devolved on him again upon his return.' He
observed, 'the question had never been examined since an end was put to slavery fifty

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years ago,' having reference to the decision of Lord Mansfield in the case of Somersett;
but the practice, he observed, 'has regularly been, that on his return to his own country,
the slave resumed his original character of slave.' And so Lord Stowell held in the case.

Judge Story, in his letter in reply, observes: 'I have read with great attention your
judgment in the slave case, &c. Upon the fullest consideration which I have been able
to give the subject, I entirely concur in your views. If I had been called upon to
pronounce a judgment in a like case, I should have certainly arrived at the same result.'
Again he observes: 'In my native State, (Massachusetts,) the state of slavery is not
recognised as legal; and yet, if a slave should come hither, and afterwards return to his
own home, we should certainly think that the local law attached upon him, and that his
servile character would be redintegrated.'

We may remark, in this connection, that the case before the Maryland court, already
referred to, and which was decided in 1799, presented the same question as that before
Lord Stowell, and received a similar decision. This was nearly thirty years before the
decision in that case, which was in 1828. The Court of Appeals observed, in deciding
the Maryland case, that 'however the laws of Great Britain in such instances, operating
upon such persons there, might interfere so as to prevent the exercise of certain acts by
the masters, not permitted, as in the case of Somersett, yet, upon the bringing Ann Joice
into this State, (then the province of Maryland,) the relation of master and slave
continued in its extent, as authorized by the laws of this State.' And Luther Martin, one
of the counsel in that case, stated, on the argument, that the question had been
previously decided the same way in the case of slaves returning from a residence in
Pennsylvania, where they had become free under her laws.

The State of Louisiana, whose courts had gone further in holding the slave free on his
return from a residence in a free State than the courts of her sister States, has settled the
law, by an act of her Legislature, in conformity with the law of the court of Missouri in
the case before us. (Sess. Law, 1846).

The case before Lord Stowell presented much stronger features for giving effect to the
law of England in the case of the slave Grace than exists in the cases that have arisen in
this country, for in that case the slave returned to a colony of England over which the
Imperial Government exercised supreme authority. Yet, on the return of the slave to the
colony, from a temporary residence in England, he held that the original condition of the
slave attached. The question presented in cases arising here is as to the effect and
operation to be given to the laws of a foreign State, on the return of the slave within an
independent sovereignty.

Upon the whole, it must be admitted that the current of authority, both in England and
in this country, is in accordance with the law as declared by the courts of Missouri in the
case before us, and we think the court below was not only right, but bound to follow it.

Some question has been made as to the character of the residence in this case in the free
State. But we regard the facts as set forth in the agreed case as decisive. The removal of

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Dr. Emerson from Missouri to the military posts was in the discharge of his duties as
surgeon in the army, and under the orders of his Government. He was liable at any
moment to be recalled, as he was in 1838, and ordered to another post. The same is also
true as it respects Major Taliaferro.

In such a case, the officer goes to his post for a temporary purpose, to remain there for
an uncertain time, and not for the purpose of fixing his permanent abode. The question
we think too plain to require argument. The case of the Attorney General v. Napier, (6
Welsh, Hurtst. and Gordon Exch. Rep., 217,) illustrates and applies the principle in the
case of an officer of the English army.

A question has been alluded to, on the argument, namely: the right of the master with
his slave of transit into or through a free State, on business or commercial pursuits, or in
the exercise of a Federal right, or the discharge of a Federal duty, being a citizen of the
United States, which is not before us.

This question depends upon different considerations and principles from the one in
hand, and turns upon the rights and privileges secured to a common citizen of the
republic under the Constitution of the United States. When that question arises, we
shall be prepared to decide it.

Our conclusion is, that the judgment of the court below should be affirmed.

Mr. Justice GRIER.

I concur in the opinion delivered by Mr. Justice Nelson on the questions discussed by
him.

I also concur with the opinion of the court as delivered by the Chief Justice, that the act
of Congress of 6th March, 1820, is unconstitutional and void; and that, assuming the
facts as stated in the opinion, the plaintiff cannot sue as a citizen of Missouri in the
courts of the United States. But, that the record shows a prima facie case of jurisdiction,
requiring the court to decide all the questions properly arising in it; and as the decision
of the pleas in bar shows that the plaintiff is a slave, and therefore not entitled to sue in
a court of the United States, the form of the judgment is of little importance; for,
whether the judgment be affirmed or dismissed for want of jurisdiction, it is justified by
the decision of the court, and is the same in effect between the parties to the suit.

Mr. Justice DANIEL.

It may with truth be affirmed, that since the establishment of the several communities
now constituting the States of this Confederacy, there never has been submitted to any
tribunal within its limits questions surpassing in importance those now claiming the
consideration of this court. Indeed it is difficult to imagine, in connection with the
systems of polity peculiar to the United States, a conjuncture of graver import than that
must be, within which it is aimed to comprise, and to control, not only the faculties and

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practical operation appropriate to the American Confederacy as such, but also the rights
and powers of its separate and independent members, with reference alike to their
internal and domestic authority and interests, and the relations they sustain to their
confederates.

To my mind it is evident, that nothing less than the ambitious and far-reaching
pretension to compass these objects of vital concern, is either directly essayed or
necessarily implied in the positions attempted in the argument for the plaintiff in error.

How far these positions have any foundation in the nature of the rights and relations of
separate, equal, and independent Governments, or in the provisions of our own Federal
compact, or the laws enacted under and in pursuance of the authority of that compact,
will be presently investigated.

In order correctly to comprehend the tendency and force of those positions, it is proper
here succinctly to advert to the facts upon which the questions of law propounded in
the argument have arisen.

This was an action of trespass vi et armis, instituted in the Circuit Court of the United
States for the district of Missouri, in the name of the plaintiff in error, a negro held as a
slave, for the recovery of freedom for himself, his wife, and two children, also negroes.

To the declaration in this case the defendant below, who is also the defendant in error,
pleaded in abatement that the court could not take cognizance of the cause, because the
plaintiff was not a citizen of the State of Missouri, as averred in the declaration, but was
a negro of African descent, and that his ancestors were of pure African blood, and were
brought into this country and sold as negro slaves; and hence it followed, from the
second section of the third article of the Constitution, which creates the judicial power
of the United States, with respect to controversies between citizens of different States,
that the Circuit Court could not take cognizance of the action.

To this plea in abatement, a demurrer having been interposed on behalf of the plaintiff,
it was sustained by the court. After the decision sustaining the demurrer, the defendant,
in pursuance of a previous agreement between counsel, and with the leave of the court,
pleaded in bar of the action: 1st, not guilty; 2dly, that the plaintiff was a negro slave, the
lawful property of the defendant, and as such the defendant gently laid his hands upon
him, and thereby had only restrained him, as the defendant had a right to do; 3dly, that
with respect to the wife and daughters of the plaintiff, in the second and third counts of
the declaration mentioned, the defendant had, as to them, only acted in the same
manner, and in virtue of the same legal right.

Issues having been joined upon the above pleas in bar, the following statement,
comprising all the evidence in the cause, was agreed upon and signed by the counsel of
the respective parties, viz: 'In the year 1834, the plaintiff was a negro slave belonging to
Doctor Emerson, who was a surgeon in the army of the United States. In that year,
1834, said Dr. Emerson took the plaintiff from the State of Missouri to the military post

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at Rock Island, in the State of Illinois, and held him there as a slave until the month of
April or May, 1836. At the time last mentioned, said Dr. Emerson removed the plaintiff
from said military post at Rock Island to the military post at Fort Snelling, situate on the
west bank of the Mississippi river, in the Territory known as Upper Louisiana, acquired
by the United States of France, and situate north of the latitude of thirty-six degrees
thirty minutes north, and north of the State of Missouri. Said Dr. Emerson held the
plaintiff in slavery at said Fort Snelling, from said last-mentioned date until the year
1838.

'In the year 1835, Harriet, who is named in the second count of the plaintiff's
declaration, was the negro slave of Major Taliaferro, who belonged to the army of the
United States. In that year, 1835, said Major Taliaferro took said Harriet to said Fort
Snelling, a military post situated as hereinbefore stated, and kept her there as a slave
until the year 1836, and then sold and delivered her as a slave at said Fort Snelling unto
the said Dr. Emerson, hereinbefore named. Said Dr. Emerson held said Harriet in
slavery at said Fort Snelling until the year 1838.

'In the year 1836, the plaintiff and said Harriet, at said Fort Snelling, with the consent of
said Dr. Emerson, who then claimed to be their master and owner, intermarried, and
took each other for husband and wife. Eliza and Lizzie, named in the third count of the
plaintiff's declaration, are the fruit of that marriage. Eliza is about fourteen years old,
and was born on board the steamboat Gipsey, north of the north line of the State of
Missouri, and upon the river Mississippi. Lizzie is about seven years old, and was born
in the State of Missouri, at a military post called Jefferson barracks.

'In the year 1838, said Dr. Emerson removed the plaintiff and said Harriet, and their said
daughter Eliza, from said Fort Snelling to the State of Missouri, where they have ever
since resided.

'Before the commencement of this suit, said Dr. Emerson sold and conveyed the
plaintiff, said Harriet, Eliza, and Lizzie, to the defendant, as slaves, and the defendant
has ever since claimed to hold them and each of them as slaves.

'At the times mentioned in the plaintiff's declaration, the defendant, claiming to be
owner as aforesaid, laid his hands upon said plaintiff, Harriet,, and Lizzie, and
imprisoned them, doing in this respect, however, no more than what he might lawfully
do if they were of right his slaves at such times.

'Further proof may be given on the trial for either party.

'R. M. FIELD, for Plaintiff. 'H. A. GARLAND, for Defendant.

'It is agreed that DRED SCOTT brought suit for his freedom in the Circuit Court of St.
Louis county; that there was a verdict and judgment in his favor; that on a writ of error
to the Supreme Court, the judgment below was reversed, and the cause remanded to the
Circuit Court, where it has been continued to await the decision of this case.

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'FIELD, for Plaintiff.<BR> 'GARLAND, for Defendant.'

Upon the aforegoing agreed facts, the plaintiff prayed the court to instruct the jury that
they ought to find for the plaintiff, and upon the refusal of the instruction thus prayed
for, the plaintiff excepted to the court's opinion. The court then, upon the prayer of the
defendant, instructed the jury, that upon the facts of this case agreed as above, the law
was with the defendant. To this opinion, also, the plaintiff's counsel excepted, as he did
to the opinion of the court denying to the plaintiff a new trial after the verdict of the
jury in favor of the defendant.

The question first in order presented by the record in this cause, is that which arises
upon the plea in abatement, and the demurrer to that plea; and upon this question it is
my opinion that the demurrer should have been overruled, and the plea sustained.

On behalf of the plaintiff it has been urged, that by the pleas interposed in bar of a
recovery in the court below, (which pleas both in fact and in law are essentially the
same with the objections averred in abatement,) the defence in abatement has been
displaced or waived; that it could therefore no longer be relied on in the Circuit Court,
and cannot claim the consideration of this court in reviewing this cause. This position is
regarded as wholly untenable.

On the contrary, it would seem to follow conclusively from the peculiar character of the
courts of the United States, as organized under the Constitution and the statutes, and as
defined by numerous and unvarying adjudications from this bench, that there is not one
of those courts whose jurisdiction and powers can be deduced from mere custom or
tradition; not one, whose jurisdiction and powers must not be traced palpably to, and
invested exclusively by, the Constitution and statutes of the United States; not one that
is not bound, therefore, at all times, and at all stages of its proceedings, to look to and to
regard the special and declared extent and bounds of its commission and authority.
There is no such tribunal of the United States as a court of general jurisdiction, in the
sense in which that phrase is applied to the superior courts under the common law; and
even with respect to the courts existing under that system, it is a well-settled principle,
that consent can never give jurisdiction.

The principles above stated, and the consequences regularly deducible from them, have,
as already remarked, been repeatedly and unvaryingly propounded from this bench.
Beginning with the earliest decisions of this court, we have the cases of Bingham v.
Cabot et al., (3 Dallas, 382;) Turner v. Eurille, (4 Dallas, 7;) Abercrombie v. Dupuis et
al., (1 Cranch, 343;) Wood v. Wagnon, (2 Cranch, 9;) The United States v. The brig
Union et al., (4 Cranch, 216;) Sullivan v. The Fulton Steamboat Company, (6 Wheaton,
450;) Mollan et al. v. Torrence, (9 Wheaton, 537;) Brown v. Keene, (8 Peters, 112,) and
Jackson v. Ashton, (8 Peters, 148;) ruling, in uniform and unbroken current, the doctrine
that it is essential to the jurisdiction of the courts of the United States, that the facts
upon which it is founded should appear upon the record. Nay, to such an extent and so
inflexibly has this requisite to the jurisdiction been enforced, that in the case of Capron
v. Van Noorden, (2 Cranch, 126,) it is declared, that the plaintiff in this court may

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assign for error his own omission in the pleadings in the court below, where they go to
the jurisdiction. This doctrine has been, if possible, more strikingly illustrated in a later
decision, the case of The State of Rhode Island v. The State of Massachusetts, in the
12th of Peters.

In this case, on page 718 of the volume, this court, with reference to a motion to dismiss
the cause for want of jurisdiction, have said: 'However late this objection has been
made, or may be made, in any cause in an inferior or appellate court of the United
States, it must be considered and decided before any court can move one farther step in
the cause, as any movement is necessarily to exercise the jurisdiction. Jurisdiction is the
power to hear and determine the subject-matter in controversy between the parties to a
suit; to adjudicate or exercise any judicial power over them.

The question is, whether on the case before the court their action is judicial or
extra-judicial; with or without the authority of law to render a judgment or decree upon
the rights of the litigant parties. A motion to dismiss a cause pending in the courts of the
United States, is not analogous to a plea to the jurisdiction of a court of common law or
equity in England; there, the superior courts have a general jurisdiction over all persons
within the realm, and all causes of action between them. It depends on the
subject-matter, whether the jurisdiction shall be exercised by a court of law or equity;
but that court to which it appropriately belongs can act judicially upon the party and the
subject of the suit, unless it shall be made apparent to the court that the judicial
determination of the case has been withdrawn from the court of general jurisdiction to
an inferior and limited one. It is a necessary presumption that the court of general
jurisdiction can act upon the given case, when nothing to the contrary appears; hence
has arisen the rule that the party claiming an exemption from its process must set out
the reason by a special plea in abatement, and show that some inferior court of law or
equity has the exclusive cognizance of the case, otherwise the superior court must
proceed in virtue of its general jurisdiction.

A motion to dismiss, therefore, cannot be entertained, as it does not disclose a case of


exception; and if a plea in abatement is put in, it must not only make out the exception,
but point to the particular court to which the case belongs. There are other classes of
cases where the objection to the jurisdiction is of a different nature, as on a bill in
chancery, that the subject-matter is cognizable only by the King in Council, or that the
parties defendant cannot be brought before any municipal court on account of their
sovereign character or the nature of the controversy; or to the very common cases which
present the question, whether the cause belong to a court of law or equity. To such
cases, a plea in abatement would not be applicable, because the plaintiff could not sue
in an inferior court. The objection goes to a denial of any jurisdiction of a municipal
court in the one class of cases, and to the jurisdiction of any court of equity or of law in
the other, on which last the court decides according to its discretion.

'An objection to jurisdiction on the ground of exemption from the process of the court
in which the suit is brought, or the manner in which a defendant is brought into it, is
waived by appearance and pleading to issue; but when the objection goes to the power

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of the court over the parties or the subject- matter, the defendant need not, for he
cannot, give the plaintiff a better writ. Where an inferior court can have no jurisdiction
of a case of law or equity, the ground of objection is not taken by plea in abatement, as
an exception of the given case from the otherwise general jurisdiction of the court;
appearance does not cure the defect of judicial power, and it may be relied on by plea,
answer, demurrer, or at the trial or hearing. As a denial of jurisdiction over the
subject-matter of a suit between parties within the realm, over which and whom the
court has power to act, cannot be successful in an English court of general jurisdiction,
a motion like the present could not be sustained consistently with the principles of its
constitution. But as this court is one of limited and special original jurisdiction, its
action must be confined to the particular cases, controversies, and parties, over which
the Constitution and laws have authorized it to act; any proceeding without the limits
prescribed is coram non judice, and its action a nullity. And whether the want or excess
of power is objected by a party, or is apparent to the court, it must surcease its action or
proceed extra-judicially.' In the constructing of pleadings either in abatement or in bar,
every fact or position constituting a portion of the public law, or of known or general
history, is necessarily implied. Such fact or position need not be specially averred and set
forth; it is what the world at large and every individual are presumed to know--nay, are
bound to know and to be governed by.

If, on the other hand, there exist facts or circumstances by which a particular case would
be withdrawn or exempted from the influence of public law or necessary historical
knowledge, such facts and circumstances form an exception to the general principle,
and these must be specially set forth and established by those who would avail
themselves of such exception.

Now, the following are truths which a knowledge of the history of the world, and
particularly of that of our own country, compels us to know--that the African negro race
never have been acknowledged as belonging to the family of nations; that as amongst
them there never has been known or recognised by the inhabitants of other countries
anything partaking of the character of nationality, or civil or political polity; that this
race has been by all the nations of Europe regarded as subjects of capture or purchase;
as subjects of commerce or traffic; and that the introduction of that race into every
section of this country was not as members of civil or political society, but as slaves, as
property in the strictest sense of the term.

In the plea in abatement, the character or capacity of citizen on the part of the plaintiff
is denied; and the causes which show the absence of that character or capacity are set
forth by averment. The verity of those causes, according to the settled rules of pleading,
being admitted by the demurrer, it only remained for the Circuit Court to decide upon
their legal sufficiency to abate the plaintiff's action. And it now becomes the province of
this court to determine whether the plaintiff below, (and in error here,) admitted to be a
negro of African descent, whose ancestors were of pure African blood, and were
brought into this country and sold as negro slaves -- such being his status, and such the
circumstances surrounding his position--whether he can, by correct legal induction from
that status and those circumstances, be clothed with the character and capacities of a

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citizen of the State of Missouri?

It may be assumed as a postulate, that to a slave, as such, there appertains and can
appertain no relation, civil or political, with the State or the Government. He is himself
strictly property, to be used in subserviency to the interests, the convenience, or the will,
of his owner; and to suppose, with respect to the former, the existence of any privilege
or discretion, or of any obligation to others incompatible with the magisterial rights just
defined, would be by implication, if not directly, to deny the relation of master and
slave, since none can possess and enjoy, as his own, that which another has a paramount
right and power to withhold. Hence it follows, necessarily, that a slave, the peculium or
property of a master, and possessing within himself no civil nor political rights or
capacities, cannot be a CITIZEN. For who, it may be asked, is a citizen? What do the
character and status of citizen import?

Without fear of contradiction, it does not import the condition of being private property,
the subject of individual power and ownership. Upon a principle of etymology alone,
the term citizen, as derived from civitas, conveys the ideas of connection or
identification with the State or Government, and a participation of its functions. But
beyond this, there is not, it is believed, to be found, in the theories of writers on
Government, or in any actual experiment heretofore tried, an exposition of the term
citizen, which has not been understood as conferring the actual possession and
enjoyment, or the perfect right of acquisition and enjoyment, of an entire equality of
privileges, civil and political.

Thus Vattel, in the preliminary chapter to his Treatise on the Law of Nations, says:
'Nations or States are bodies politic; societies of men united together for the purpose of
promoting their mutual safety and advantage, by the joint efforts of their mutual
strength. Such a society has her affairs and her interests; she deliberates and takes
resolutions in common; thus becoming a moral person, who possesses an understanding
and a will peculiar to herself.' Again, in the first chapter of the first book of the Treatise
just quoted, the same writer, after repeating his definition of a State, proceeds to
remark, that, 'from the very design that induces a number of men to form a society,
which has its common interests and which is to act in concert, it is necessary that there
should be established a public authority, to order and direct what is to be done by each,
in relation to the end of the association. This political authority is the sovereignty.'
Again this writer remarks: 'The authority of all over each member essentially belongs to
the body politic or the State.'

By this same writer it is also said: 'The citizens are the members of the civil society;
bound to this society by certain duties, and subject to its authority; they equally
participate in its advantages. The natives, or natural- born citizens, are those born in the
country, of parents who are citizens. As society cannot perpetuate itself otherwise than
by the children of the citizens, those children naturally follow the condition of their
parents, and succeed to all their rights.' Again: 'I say, to be of the country, it is necessary
to be born of a person who is a citizen; for if he be born there of a foreigner, it will be
only the place of his birth, and not his country. The inhabitants, as distinguished from

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citizens, are foreigners who are permitted to settle and stay in the country.' (Vattel,
Book 1, cap. 19, p. 101.) From the views here expressed, and they seem to be
unexceptionable, it must follow, that with the slave, with one devoid of rights or
capacities, civil or political, there could be no pact; that one thus situated could be no
party to, or actor in, the association of those possessing free will, power, discretion.

He could form no part of the design, no constituent ingredient or portion of a society


based upon common, that is, upon equal interests and powers. He could not at the same
time be the sovereign and the slave.

But it has been insisted, in argument, that the emancipation of a slave, effected either by
the direct act and assent of the master, or by causes operating in contravention of his
will, produces a change in the status or capacities of the slave, such as will transform
him from a mere subject of property, into a being possessing a social, civil, and political
equality with a citizen. In other words, will make him a citizen of the State within
which he was, previously to his emancipation, a slave.

It is difficult to conceive by what magic the mere surcease or renunciation of an interest


in a subject of property, by an individual possessing that interest, can alter the essential
character of that property with respect to persons or communities unconnected with
such renunciation. Can it be pretended that an individual in any State, by his single act,
though voluntarily or designedly performed, yet without the co-operation or warrant of
the Government, perhaps in opposition to its policy or its guaranties, can create a citizen
of that State? Much more emphatically may it be asked, how such a result could be
accomplished by means wholly extraneous, and entirely foreign to the Government of
the State? The argument thus urged must lead to these extraordinary conclusions. It is
regarded at once as wholly untenable, and as unsustained by the direct authority or by
the analogies of history.

The institution of slavery, as it exists and has existed from the period of its introduction
into the United States, though more humane and mitigated in character than was the
same institution, either under the republic or the empire of Rome, bears, both in its
tenure and in the simplicity incident to the mode of its exercise, a closer resemblance to
Roman slavery than it does to the condition of villanage, as it formerly existed in
England.

Connected with the latter, there were peculiarities, from custom or positive regulation,
which varied it materially from the slavery of the Romans, or from slavery at any period
within the United States.

But with regard to slavery amougst the Romans, it is by no means true that
emancipation, either during the republic or the empire, conferred, by the act itself, or
implied, the status or the rights of citizenship.

The proud title of Roman citizen, with the immunities and rights incident thereto, and
as contradistinguished alike from the condition of conquered subjects or of the lower

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grades of native domestic residents, was maintained throughout the duration of the
republic, and until a late period of the eastern empire, and at last was in effect destroyed
less by an elevation of the inferior classes than by the degradation of the free, and the
previous possessors of rights and immunities civil and political, to the indiscriminate
abasement incident to absolute and simple despotism.

By the learned and elegant historian of the Decline and Fall of the Roman Empire, we
are told that 'In the decline of the Roman empire, the proud distinctions of the republic
were gradually abolished; and the reason or instinct of Justinian completed the simple
form of an absolute monarchy. The emperor could not eradicate the popular reverence
which always waits on the possession of hereditary wealth or the memory of famous
ancestors. He delighted to honor with titles and emoluments his generals, magistrates,
and senators, and his precarious indulgence communicated some rays of their glory to
their wives and children. But in the eye of the law all Roman citizens were equal, and
all subjects of the empire were citizens of Rome. That inestimable character was
degraded to an obsolete and empty name. The voice of a Roman could no longer enact
his laws, or create the annual ministers of his powers; his constitutional rights might
have checked the arbitrary will of a master; and the bold adventurer from Germany or
Arabia was admitted with equal favor to the civil and military command which the
citizen alone had been once entitled to assume over the conquests of his fathers. The
first Caesars had scrupulously guarded the distinction of ingenuous and servile birth,
which was decided by the condition of the mother. The slaves who were liberated by a
generous master immediately entered into the middle class of libertini or freedmen; but
they could never be enfranchised from the duties of obedience and gratitude; whatever
were the fruits of their industry, their patron and his family inherited the third part, or
even the whole of their fortune, if they died without children and without a testament.
Justinian respected the rights of patrons, but his indulgence removed the badge of
disgrace from the two inferior orders of freedmen; whoever ceased to be a slave,
obtained without reserve or delay the station of a citizen; and at length the dignity of an
ingenuous birth was created or supposed by the omnipotence of the emperor.' [FN1]
FN1 Vide Gibbons's Decline and Fall of the Roman Empire. London edition of 1825,
vol. 3d, chap. 44, p. 183.

The above account of slavery and its modifications will be found in strictest conformity
with the Institutes of Justinian. Thus, book 1st, title 3d, it is said: 'The first general
division of persons in respect to their rights is into freemen and slaves.' The same title,
sec. 4th: 'Slaves are born such, or become so. They are born such of bondwomen; they
become so either by the law of nations, as by capture, or by the civil law. Section 5th:
'In the condition of slaves there is no diversity; but among free persons there are many.
Thus some are ingenui or freemen, others libertini or freedmen.' Tit. 4th. DE
INGENUIS. -- 'A freeman is one who is born free by being born in matrimony, of
parents who both are free, or both freed; or of parents one free and the other freed. But
one born of a free mother, although the father be a slave or unknown, is free.' Tit. 5th.
DE LIBERTINIS. -- 'Freedmen are those who have been manumitted from just
servitude.'

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Section third of the same title states that 'freedmen were formerly distinguished by a
threefold division.' But the emperor proceeds to say: 'Our piety leading us to reduce all
things into a better state, we have amended our laws, and reestablished the ancient
usage; for anciently liberty was simple and undivided--that is, was conferred upon the
slave as his manumittor possessed it, admitting this single difference, that the person
manumitted became only a freed man, although his manumittor was a free man.' And he
further declares: 'We have made all freed men in general become citizens of Rome,
regarding neither the age of the manumitted, nor the manumittor, nor the ancient forms
of manumission. We have also introduced many new methods by which slaves may
become Roman citizens.'

By the references above given it is shown, from the nature and objects of civil and
political associations, and upon the direct authority of history, that citizenship was not
conferred by the simple fact of emancipation, but that such a result was deduced
therefrom in violation of the fundamental principles of free political association; by the
exertion of despotic will to establish, under a false and misapplied denomination, one
equal and universal slavery; and to effect this result required the exertions of absolute
power--of a power both in theory and practice, being in its most plenary acceptation the
SOVEREIGNTY, THE STATE ITSELF--it could not be produced by a less or inferior
authority, much less by the will or the act of one who, with reference to civil and
political rights, was himself a slave. The master might abdicate or abandon his interest
or ownership in his property, but his act would be a mere abandonment. It seems to
involve an absurdity to impute to it the investiture of rights which the sovereignty alone
had power to impart. There is not perhaps a community in which slavery is recognised,
in which the power of emancipation and the modes of its exercise are not regulated by
law--that is, by the sovereign authority; and none can fail to comprehend the necessity
for such regulation, for the preservation of order, and even of political and social
existence.

By the argument for the plaintiff in error, a power equally despotic is vested in every
member of the association, and the most obscure or unworthy individual it comprises
may arbitrarily invade and derange its most deliberate and solemn ordinances. At
assumptions anomalous as these, so fraught with mischief and ruin, the mind at once is
revolted, and goes directly to the conclusions, that to change or to abolish a
fundamental principle of the society, must be the act of the society itself -- of the
sovereignty; and that none other can admit to a participation of that high attribute. It
may further expose the character of the argument urged for the plaintiff, to point out
some of the revolting consequences which it would authorize. If that argument
possesses any integrity, it asserts the power in any citizen, or quasi citizen, or a resident
foreigner of any one of the States, from a motive either of corruption or caprice, not
only to infract the inherent and necessary authority of such State, but also materially to
interfere with the organization of the Federal Government, and with the authority of the
separate and independent States. He may emancipate his negro slave, by which process
he first transforms that slave into a citizen of his own State; he may next, under color of
article fourth, section second, of the Constitution of the United States, obtrude him, and
on terms of civil and political equality, upon any and every State in this Union, in
defiance of all regulations of necessity or policy, ordained by those States for their

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internal happiness or safety. Nay, more: this manumitted slave may, by a proceeding
springing from the will or act of his master alone, be mixed up with the institutions of
the Federal Government, to which he is not a party, and in opposition to the laws of
that Government which, in authorizing the extension by naturalization of the rights and
immunities of citizens of the United States to those not originally parties to the Federal
compact, have restricted that boon to free white aliens alone. If the rights and
immunities connected with or practiced under the institutions of the United States can
by any indirection be claimed or deduced from sources or modes other than the
Constitution and laws of the United States, it follows that the power of naturalization
vested in Congress is not exclusive -- that it has in effect no existence, but is repealed or
abrogated.

But it has been strangely contended that the jurisdiction of the Circuit Court might be
maintained upon the ground that the plaintiff was a resident of Missouri, and that, for
the purpose of vesting the court with jurisdiction over the parties, residence within the
State was sufficient.

The first, and to my mind a conclusive reply to this singular argument is presented in the
fact, that the language of the Constitution restricts the jurisdiction of the courts to cases
in which the parties shall be citizens, and is entirely silent with respect to residence. A
second answer to this strange and latitudinous notion is, that it so far stultifies the sages
by whom the Constitution was framed, as to impute to them ignorance of the material
distinction existing between citizenship and mere residence or domicil, and of the
well-known facts, that a person confessedly an alien may be permitted to reside in a
country in which he can possess no civil or political rights, or of which he is neither a
citizen nor subject; and that for certain purposes a man may have a domicil in different
countries, in no one of which he is an actual personal resident.

The correct conclusions upon the question here considered would seem to be these:

That in the establishment of the several communities now the States of this Union, and
in the formation of the Federal Government, the African was not deemed politically a
person. He was regarded and owned in every State in the Union as property merely, and
as such was not and could not be a party or an actor, much less a peer in any compact or
form of government established by the States or the United States. That if, since the
adoption of the State Governments, he has been or could have been elevated to the
posession of political rights or powers, this result could have been effected by no
authority less potent than that of the sovereignty -- the State--exerted to that end, either
in the form of legislation, or in some other mode of operation. It could certainly never
have been accomplished by the will of an individual operating independently of the
sovereign power, and even contravening and controlling that power. That so far as
rights and immunities appertaining to citizens have been defined and secured by the
Constitution and laws of the United States, the African race is not and never was
recognised either by the language or purposes of the former; and it has been expressly
excluded by every act of Congress providing for the creation of citizens by
naturalization, these laws, as has already been remarked, being restricted to free white

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aliens exclusively.

But it is evident that, after the formation of the Federal Government by the adoption of
the Constitution, the highest exertion of State power would be incompetent to bestow a
character or status created by the Constitution, or conferred in virtue of its authority
only. Upon those, therefore, who were not originally parties to the Federal compact, or
who are not admitted and adopted as parties thereto, in the mode prescribed by its
paramount authority, no State could have power to bestow the character or the rights
and privileges exclusively reserved by the States for the action of the Federal
Government by that compact.

The States, in the exercise of their political power, might, with reference to their
peculiar Government and jurisdiction, guaranty the rights of person and property, and
the enjoyment of civil and political privileges, to those whom they should be disposed to
make the objects of their bounty; but they could not reclaim or exert the powers which
they had vested exclusively in the Government of the United States. They could not add
to or change in any respect the class of persons to whom alone the character of citizen
of the United States appertained at the time of the adoption of the Federal Constitution.
They could not create citizens of the United States by any direct or indirect proceeding.

According to the view taken of the law, as applicable to the demurrer to the plea in
abatement in this cause, the questions subsequently raised upon the several pleas in bar
might be passed by, as requiring neither a particular examination, nor an adjudication
directly upon them. upon them. But as these questions are intrinsically of primary
interest and magnitude, and have been elaborately discussed in argument, and as with
respect to them the opinions of a majority of the court, including my own, are perfectly
coincident, to me it seems proper that they should here be fully considered, and, so far
as it is practicable for this court to accomplish such an end, finally put to rest.

The questions then to be considered upon the several pleas in bar, and upon the agreed
statement of facts between the counsel, are: 1st. Whether the admitted master and
owner of the plaintiff, holding him as his slave in the State of Missouri, and in
conformity with his rights guarantied to him by the laws of Missouri then and still in
force, by carrying with him for his own benefit and accommodation, and as his own
slave, the person of the plaintiff into the State of Illinois, within which State slavery had
been prohibited by the Constitution thereof, and by retaining the plaintiff during the
commorancy of the master within the State of Illinois, had, upon his return with his
slave into the State of Missouri, forfeited his rights as master, by reason of any supposed
operation of the prohibitory provision in the Constitution of Illinois, beyond the proper
territorial jurisdiction of the latter State? 2d.

Whether a similar removal of the plaintiff by his master from the State of Missouri, and
his retention in service at a point included within no State, but situated north of
thirty-six degrees thirty minutes of north latitude, worked a forfeiture of the right of
property of the master, and the manumission of the plaintiff?

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In considering the first of these questions, the acts or declarations of the master, as
expressive of his purpose to emancipate, may be thrown out of view, since none will
deny the right of the owner to relinquish his interest in any subject of property, at any
time or in any place. The inquiry here bears no relation to acts or declarations of the
owner as expressive of his intent or purpose to make such a relinquishment; it is simply
a question whether, irrespective of such purpose, and in opposition thereto, that
relinquishment can be enforced against the owner of property within his own country, in
defiance of every guaranty promised by its laws; and this through the instrumentality of
a claim to power entirely foreign and extraneous with reference to himself, to the origin
and foundation of his title, and to the independent authority of his country. A conclusive
negative answer to such an inquiry is at once supplied, by announcing a few familiar and
settled principles and doctrines of public law.

Vattel, in his chapter the the general principles of the laws of nations, section 15th, tells
us, that 'nations being free and independent of each other in the same manner that men
are naturally free and independent, the second general law of their society is, that each
nation should be left in the peaceable enjoyment of that liberty which she inherits from
nature.' 'The natural society of nations,' says this writer, 'cannot subsist unless the
natural rights of each be respected.' In section 16th he says, 'as a consequence of that
liberty and independence, it exclusively belongs to each nation to form her own
judgment of what her conscience prescribes for her--of what it is proper or improper for
her to do; and of course it rests solely with her to examine and determine whether she
can perform any office for another nation without neglecting the duty she owes to
herself. In all cases, therefore, in which a nation has the right of judging what her duty
requires, no other nation can compel her to act in such or such a particular manner, for
any attempt at such compulsion would be an infringement on the liberty of nations.'
Again, in section 18th, of the same chapter, 'nations composed of men, and considered
as so many free persons living together in a state of nature, are naturally equal, and
inherit from nature the same obligations and rights. Power or weakness does not
produce any difference. A small republic is no less a sovereign state than the most
powerful kingdom.' So, in section 20: 'A nation, then, is mistress of her own actions, so
long as they do not affect the proper and perfect rights of any other nation -- so long as
she is only internally bound, and does not lie under any external and perfect obligation.
If she makes an ill use of her liberty, she is guilty of a breach of duty; but other nations
are bound to acquiesce in her conduct, since they have no right to dictate to her. Since
nations are free, independent, and equal, and since each possesses the right of judging,
according to the dictates of her conscience, what conduct she is to pursue, in order to
fulfil her duties, the effect of the whole is to produce, at least externally, in the eyes of
mankind, a perfect equality of rights between nations, in the administration of their
affairs, and in the pursuit of their pretensions, without regard to the intrinsic justice of
their conduct, of which others have no right to form a definitive judgment.'

Chancellor Kent, in the 1st volume of his Commentaries, lecture 2d, after collating the
opinions of Grotius, Heineccius, Vattel, and Rutherford, enunciates the following
positions as sanctioned by these and other learned publicists, viz: that 'nations are equal
in respect to each other, and entitled to claim equal consideration for their rights,
whatever may be their relative dimensions or strength, or however greatly they may

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differ in government, religion, or manners. This perfect equality and entire independence
of all distinct States is a fundamental principle of public law. It is a necessary
consequence of this equality, that each nation has a right to govern itself as it may think
proper, and no one nation is entitled to dictate a form of government or religion, or a
course of internal policy, to another.' This writer gives some instances of the violation of
this great national immunity, and amongst them the constant interference by the ancient
Romans, under the pretext of settling disputes between their neighbors, but with the
real purpose of reducing those neighbors to bondage; the interference of Russia, Prussia,
and Austria, for the dismemberment of Poland; the more recent invasion of Naples by
Austria in 1821, and of Spain by the French Government in 1823, under the excuse of
suppressing a dangerous spirit of internal revolution and reform.

With reference to this right of self-government in independent sovereign States, an


opinion has been expressed, which, whilst it concedes this right as inseparable from and
as a necessary attribute of sovereignty and independence, asserts nevertheless some
implied and paramount authority of a supposed international law, to which this right of
self-government must be regarded and exerted as subordinate; and from which
independent and sovereign States can be exempted only by a protest, or by some public
and formal rejection of that authority. With all respect for those by whom this opinion
has been professed, I am constrained to regard it as utterly untenable, as palpably
inconsistent, and as presenting in argument a complete felo de se.

Sovereignty, independence, and a perfect right of self-government, can signify nothing


less than a superiority to and an exemption from all claims by any extraneous power,
however expressly they may be asserted, and render all attempts to enforce such claims
merely attempts at usurpation. Again, could such claims from extraneous sources be
regarded as legitimate, the effort to resist or evade them, by protest or denial, would be
as irregular and unmeaning as it would be futile. It could in no wise affect the question
of superior right. For the position here combatted, no respectable authority has been,
and none it is thought can be adduced. It is certainly irreconcilable with the doctrines
already cited from the writers upon public law.

Neither the case of Lewis Somersett, (Howell's State Trials, vol. 20,) so often vaunted
as the proud evidence of devotion to freedom under a Government which has done as
much perhaps to extend the reign of slavery as all the world besides; nor does any
decision founded upon the authority of Somersett's case, when correctly expounded,
assail or impair the principle of national equality enunciated by each and all of the
publicists already referred to. In the case of Somersett, although the applicant for the
habeas corpus and the individual claiming property in that applicant were both subjects
and residents within the British empire, yet the decision cannot be correctly understood
as ruling absolutely and under all circumstances against the right of property in the
claimant. That decision goes no farther than to determine, that within the realm of
England there was no authority to justify the detention of an individual in private
bondage. If the decision in Somersett's case had gone beyond this point, it would have
presented the anomaly of a repeal by laws enacted for and limited in their operation to
the realm alone, of other laws and institutions established for places and subjects

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without the limits of the realm of England; laws and institutions at that very time, and
long subsequently, sanctioned and maintained under the authority of the British
Government, and which the full and combined action of the King and Parliament was
required to abrogate.

But could the decision in Somersett's case be correctly interpreted as ruling the doctrine
which it has been attempted to deduce from it, still that doctrine must be considered as
having been overruled by the lucid and able opinion of Lord Stowell in the more recent
case of the slave Grace, reported in the second volume of Haggard, p. 94; in which
opinion, whilst it is conceded by the learned judge that there existed no power to coerce
the slave whilst in England, that yet, upon her return to the island of Antigua, her status
as a slave was revived, or, rather, that the title of the owner to the slave as property had
never been extinguished, but had always existed in that island. If the principle of this
decision be applicable as between different portions of one and the same empire, with
how much more force does it apply as between nations or Governments entirely
separate, and absolutely independent of each other? For in this precise attitude the
States of this Union stand with reference to this subject, and with reference to the
tenure of every description of property vested under their laws and held within their
territorial jurisdiction.

A strong illustration of the principle ruled by Lord Stowell, and of the effect of that
principle even in a case of express contract, is seen in the case of Lewis v. Fullerton,
decided by the Supreme Court of Virginia, and reported in the first volume of
Randolph, p. 15. The case was this: A female slave, the property of a citizen of Virginia,
whilst with her master in the State of Ohio, was taken from his possession under a writ
of habeas corpus, and set at liberty. Soon, or immediately after, by agreement between
this slave and her master, a deed was executed in Ohio by the latter, containing a
stipulation that this slave should return to Virginia, and, after a service of two years in
that State, should there be free. The law of Virginia regulating emancipation required
that deeds of emancipation should, within a given time from their date, be recorded in
the court of the county in which the grantor resided, and declared that deeds with
regard to which this requisite was not complied with should be void. Lewis, an infant
son of this female, under the rules prescribed in such cases, brought an action, in forma
pauperis, in one of the courts of Virginia, for the recovery of his freedom, claimed in
virtue of the transactions above mentioned. Upon an appeal to the Supreme Court from
a judgment against the plaintiff, Roane, Justice, in delivering the opinion of the court,
after disposing of other questions discussed in that case, remarks: 'As to the deed of
emancipation contained in the record, that deed, taken in connection with the evidence
offered in support of it, shows that it had a reference to the State of Virginia; and the
testimony shows that it formed a part of this contract, whereby the slave Milly was to
be brought back (as she was brought back) into the State of Virginia. Her object was
therefore to secure her freedom by the deed within the State of Virginia, after the time
should have expired for which she had indented herself, and when she should be found
abiding within the State of Virginia.

'If, then, this contract had an eye to the State of Virginia for its operation and effect, the

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lex loci ceases to operate. In that case it must, to have its effect, conform to the laws of
Virginia. It is insufficient under those laws to effectuate an emancipation, for what of a
due recording in the county court, as was decided in the case of Givens v. Mann, in this
court. It is also ineffectual within the Commonwealth of Virginia for another reason.
The lex loci is also to be taken subject to the exception, that it is not to be enforced in
another country, when it violates some moral duty or the policy of that country, or is not
consistent with a positive right secured to a third person or party by the laws of that
country in which it is sought to be enforced. In such a case we are told, 'magis jus
nostrum, quam jus alienum servemus." (Huberus, tom. 2, lib. 1, tit. 3; 2 Fontblanque, p.
444.) 'That third party in this instance is the Commonwealth of Virginia, and her policy
and interests are also to be attended to. These turn the scale against the lex loci in the
present instance.'

The second or last-mentioned position assumed for the plaintiff under the pleas in bar,
as it rests mainly if not solely upon the provision of the act of Congress of March 6,
1820, prohibiting slavery in Upper Louisiana north of thirty-six degrees thirty minutes
north latitude, popularly called the Missouri Compromise, that assumption renews the
question, formerly so zealously debated, as to the validity of the provision in the act of
Congress, and upon the constitutional competency of Congress to establish it.

Before proceeding, however, to examine the validity of the prohibitory provision of the
law, it may, so far as the rights involved in this cause are concerned, be remarked, that
conceding to that provision the validity of a legitimate exercise of power, still this
concession could by no rational interpretation imply the slightest authority for its
operation beyond the territorial limits comprised within its terms; much less could there
be inferred from it a power to destroy or in any degree to control rights, either of person
or property, entirely within the bounds of a distinct and independent sovereignty --
rights invested and fortified by the guaranty of that sovereignty.

These surely would remain in all their integrity, whatever effect might be ascribed to the
prohibition within the limits defined by its language.

But, beyond and in defiance of this conclusion, inevitable and undeniable as it appears,
upon every principle of justice or sound induction, it has been attempted to convert this
prohibitory provision of the act of 1820 not only into a weapon with which to assail the
inherent -- the necessarily inherent-- powers of independent sovereign Governments,
but into a mean of forfeiting that equality of rights and immunities which are the
birthright or the donative from the Constitution of every citizen of the United States
within the length and breadth of the nation. In this attempt, there is asserted a power in
Congress, whether from incentives of interest, ignorance, faction, partiality, or
prejudice, to bestow upon a portion of the citizens of this nation that which is the
common property and privilege of all--the power, in fine, of confiscation, in retribution
for no offence, or, if for an offence, for that of accidental locality only.

It may be that, with respect to future cases, like the one now before the court, there is
felt an assurance of the impotence of such a pretension; still, the fullest conviction of

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that result can impart to it no claim to forbearance, nor dispenase with the duty of
antipathy and disgust at its sinister aspect, whenever it may be seen to scowl upon the
justice, the order, the tranquillity, and fraternal feeling, which are the surest, nay, the
only means, of promoting or preserving the happiness and prosperity of the nation, and
which were the great and efficient incentives to the formation of this Government.

The power of Congress to impose the prohibition in the eighth section of the act of
1820 has been advocated upon an attempted construction of the second clause of the
third section of the fourth article of the Constitution, which declares that 'Congress
shall have power to dispose of and to make all needful rules and regulations respecting
the territory and other property belonging to the United States.'

In the discussions in both houses of Congress, at the time of adopting this eighth
section of the act of 1820, great weight was given to the peculiar language of this
clause, viz: territory and other property belonging to the United States, as going to
show that the power of disposing of and regulating, thereby vested in Congress, was
restricted to a proprietary interest in the territory or land comprised therein, and did not
extend to the personal or political rights of citizens or settlers, inasmuch as this phrase
in the Constitution, 'territory or other property,' identified territory with property, and
inasmuch as citizens or persons could not be property, and especially were not property
belonging to the United States. And upon every principle of reason or necessity, this
power to dispose of and to regulate the territory of the nation could be designed to
extend no farther than to its preservation and appropriation to the uses of those to
whom it belonged, viz: the nation. Scarcely anything more illogical or extravagant can
be imagined than the attempt to deduce from this provision in the Constitution a power
to destroy or in any wise to impair the civil and political rights of the citizens of the
United States, and much more so the power to establish inequalities amongst those
citizens by creating privileges in one class of those citizens, and by the disfranchisement
of other portions or classes, by degrading them from the position they previously
occupied.

There can exist no rational or natural connection or affinity between a pretension like
this and the power vested by the Constitution in Congress with regard to the
Territories; on the contrary, there is an absolute incongruity between them.

But whatever the power vested in Congress, and whatever the precise subject to which
that power extended, it is clear that the power related to a subject appertaining to the
United States, and one to be disposed of and regulated for the benefit and under the
authority of the United States. Congress was made simply the agent or trustee for the
United States, and could not, without a breach of trust and a fraud, appropriate the
subject of the trust to any other beneficiary or cestui que trust than the United States, or
to the people of the United States, upon equal grounds, legal or equitable. Congress
could not appropriate that subject to any one class or portion of the people, to the
exclusion of others, politically and constitutionally equals; but every citizen would, if
any one could claim it, have the like rights of purchase, settlement, occupation, or any
other right, in the national territory.

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Nothing can be more conclusive to show the equality of this with every other right in all
the citizens of the United States, and the iniquity and absurdity of the pretension to
exclude or to disfranchise a portion of them because they are the owners of slaves, than
the fact that the same instrument, which imparts to Congress its very existence and its
every function, guaranties to the slaveholder the title to his property, and gives him the
right to its reclamation throughout the entire extent of the nation; and, farther, that the
only private property which the Constitution has specifically recognised, and has
imposed it as a direct obligation both on the States and the Federal Government to
protect and enforce, is the property of the master in his slave; no other right of property
is placed by the Constitution upon the same high ground, nor shielded by a similar
guaranty.

Can there be imputed to the sages and patriots by whom the Constitution was framed,
or can there be detected in the text of that Constitution, or in any rational construction
or implication deducible therefrom, a contradiction so palpable as would exist between
a pledge to the slaveholder of an equality with his fellow-citizens, and of the formal and
solemn assurance for the security and enjoyment of his property, and a warrant given, as
it were uno flatu, to another, to rob him of that property, or to subject him to
proscription and disfranchisement for possessing or for endeavoring to retain it? The
injustice and extravagance necessarily implied in a supposition like this, cannot be
rationally imputed to the patriotic or the honest, or to those who were merely sane.

A conclusion in favor of the prohibitory power in Congress, as asserted in the eighth


section of the act of 1820, has been attempted, as deducible from the precedent of the
ordinance of the convention of 1787, concerning the cession by Virginia of the territory
northwest of the Ohio; the provision in which ordinance, relative to slavery, it has been
attempted to impose upon other and subsequently-acquired territory.

The first circumstance which, in the consideration of this provision, impresses itself
upon my mind, is its utter futility and want of authority.

This court has, in repeated instances, ruled, that whatever may have been the force
accorded to this ordinance of 1787 at the period of its enactment, its authority and
effect ceased, and yielded to the paramount authority of the Constitution, from the
period of the adoption of the latter. Such is the principle ruled in the cases of Pollard's
Lessee v. Hagan, (3 How., 212,) Parmoli v. The First Municipality of New Orleans, (3
How., 589,) Strader v. Raham, (16 How., 82.) But apart from the superior control of
the Constitution, and anterior to the adoption of that instrument, it is obvious that the
inhibition in question never had and never could have any legitimate and binding force.
We may seek in vain for any power in the convention, either to require or to accept a
condition or restriction upon the cession like that insisted on; a condition inconsistent
with, and destructive of, the object of the grant. The cession was, as recommended by
the old Congress in 1780, made originally and completed in terms to the United States,
and for the benefit of the United States, i. e., for the people, all the people, of the
United States.

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The condition subsequently sought to be annexed in 1787, (declared, too, to be


perpetual and immutable,) being contradictory to the terms and destructive of the
purposes of the cession, and after the cession was consummated, and the powers of the
ceding party terminated, and the rights of the grantees, the people of the United States,
vested, must necessarily, so far, have been ab initio void. With respect to the power of
the convention to impose this inhibition, it seems to be pertinent in this place to recur to
the opinion of one cotemporary with the establishment of the Government, and whose
distinguished services in the formation and adoption of our national charter, point him
out as the artifex maximus of our Federal system. James Madison, in the year 1819,
speaking with reference to the prohibitory power claimed by Congress, then threatening
the very existence of the Union, remarks of the language of the second clause of the
third section of article fourth of the Constitution, 'that it cannot be well extended
beyond a power over the territory as property, and the power to make provisions really
needful or necessary for the government of settlers, until ripe for admission into the
Union.'

Again he says, 'with respect to what has taken place in the Northwest territory, it may
be observed that the ordinance giving it is distinctive character on the subject of
slaveholding proceeded from the old Congress, acting with the best intentions, but
under a charter which contains no shadow of the authority exercised; and it remains to
be decided how far the States formed within that territory, and admitted into the Union,
are on a different footing from its other members as to their legislative sovereignty. As
to the power of admitting new States into the Federal compact, the questions offering
themselves are, whether Congress can attach conditions, or the new States concur in
conditions, which after admission would abridge or enlarge the constitutional rights of
legislation common to other States; whether Congress can, by a compact with a new
State, take power either to or from itself, or place the new member above or below the
equal rank and rights possessed by the others; whether all such stipulations expressed or
implied would not be nullities, and be so pronounced when brought to a practical test.

It falls within the scope of your inquiry to state the fact, that there was a proposition in
the convention to discriminate between the old and the new States by an article in the
Constitution. The proposition, happily, was rejected. The effect of such a discrimination
is sufficiently evident.' [FN2]

FN2 Letter from James Madison to Robert Walsh, November 27th, 1819, on the
subject of the Missouri Compromise.

In support of the ordinance of 1787, there may be adduced the semblance at least of
obligation deductible from compact, the form of assent or agreement between the
grantor and grantee; but this form or similitude, as is justly remarked by Mr. Madison, is
rendered null by the absence of power or authority in the contracting parites, and by the
more intrinsic and essential defect of incompatibility with the rights and avowed
purposes of those parties, and with their relative duties and obligations to others. If,
then, with the attendant formalities of assent or compact, the restrictive power claimed
was void as to the immediate subject of the ordinance, how much more unfounded must

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be the pretension to such a power as derived from that source, (viz: the ordinance of
1787,) with respect to territory acquired by purchase or conquest under the supreme
authority of the Constitution--territory not the subject of mere donation, but obtained in
the name of all, by the combined efforts and resources of all, and with no condition
annexed or pretended.

In conclusion, my opinion is, that the decision of the Circuit Court, upon the law arising
upon the several pleas in bar, is correct, but that it is erroneous in having sustained the
demurrer to the plea in abatement of the jurisdiction; that for this error the decision of
the Circuit Court should be reversed, and the cause remanded to that court, with
instructions to abate the action, for the reason set forth and pleaded in the plea in
abatement.

In the aforegoing examination of this cause, the circumstance that the questions
involved therein had been previously adjudged between these parties by the court of the
State of Missouri, has not been adverted to; for although it has been ruled by this court,
that in instances of concurrent jurisdiction, the court first obtaining possession or
cognizance of the controversy should retain and decide it, yet, as in this case there had
been no plea, either of a former judgment or of autre action pendent, it was thought that
the fact of a prior decision, however conclusive it might have been if regularly pleaded,
could not be incidentally taken into view.

Mr. Justice CAMPBELL.

I concur in the judgment pronounced by the Chief Justice, but the importance of the
cause, the expectation and interest it has awakened, and the responsibility involved in
its determination, induce me to file a separate opinion.

The case shows that the plaintiff, in the year 1834, was a negro slave in Missouri, the
property of Dr. Emerson, a surgeon in the army of the United States. In 1834, his master
took him to the military station at Rock Island, on the border of Illinois, and in 1836 to
Fort Snelling, in the present Minnesota, then Wisconsin, Territory. While at Fort
Snelling, the plaintiff married a slave who was there with her master, and two children
have been born of this connection; one during the journey of the family in returning to
Missouri, and the other after their return to that State.

Since 1838, the plaintiff and the members of his family have been in Missouri in the
condition of slaves. The object of this suit is to establish their freedom. The defendant,
who claims the plaintiff and his family, under the title of Dr. Emerson, denied the
jurisdiction of the Circuit Court, by the plea that the plaintiff was a negro of African
blood, the descendant of Africans who had been imported and sold in this country as
slaves, and thus he had no capacity as a citizen of Missouri to maintain a suit in the
Circuit Court. The court sustained a demurrer to this plea, a trial was then had upon the
general issue, and special pleas to the effect that the plaintiff and his family were slaves
belonging to the defendant.

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My opinion in this case is not affected by the plea to the jurisdiction, and I shall not
discuss the questions it suggests. The claim of the plaintiff to freedom depends upon the
effect to be given to his absence from Missouri, in company with his master, in Illinois
and Minnesota, and this effect is to be ascertained by a reference to the laws of
Missouri. For the trespass complained of was committed upon one claiming to be a
freeman and a citizen, in that State, and who had been living for years under the
dominion of its laws. And the rule is, that whatever is a justification where the thing is
done, must be a justification in the forum where the case is tried. (20 How. St. Tri., 234;
Cowp. S. C., 161.) The Constitution of Missouri recognises slavery as a legal condition,
extends guaranties to the masters of slaves, and invites immigrants to introduce them, as
property, by a promise of protection. The laws of the State charge the master with the
custody of the slave, and provide for the maintenance and security of their relation.

The Federal Constitution and the acts of Congress provide for the return of escaping
slaves within the limits of the Union. No removal of the slave beyond the limits of the
State, against the consent of the master, nor residence there in another condition, would
be regarded as an effective manumission by the courts of Missouri, upon his return to
the State. 'Sicut liberis captis status restituitur sic servus domino.' Nor can the master
emancipate the slave within the State, except through the agency of a public authority.
The inquiry arises, whether the manumission of the slave is effected by his removal,
with the consent of the master, to a community where the law of slavery does not exist,
in a case where neither the master nor slave discloses a purpose to remain permanently,
and where both parties have continued to maintain their existing relations. What is the
law of Missouri in such a case? Similar inquiries have arisen in a great number of suits,
and the discussions in the State courts have relieved the subject of much of its difficulty.
(12 B. M. Ky. R., 545; Foster v. Foster, 10 Gratt. Va. R., 485; 4 Har. and McH. Md. R.,
295; Scott v. Emerson, 15 Misso., 576; 4 Rich. S. C. R., 186; 17 Misso., 434; 15
Misso., 596; 5 B. M., 173; 8 B. M., 540, 633; 9 B. M., 565; 5 Leigh, 614; 1Raud., 15;
18 Pick., 193.) The result of these discussions is, that in general, the Status, or civil and
political capacity of a person, is determined, in the first instance, by the law of the
domicil where he is born; that the legal effect on persons, arising from the operation of
the law of that domicil, is not indelible, but that a new capacity or status may be
acquired by a change of domicil. That questions of status are closely connected with
considerations arising out of the social and political organization of the State where they
originate, and each sovereign power must deter mine them within its own territories.

A large class of cases has been decided upon the second of the propositions above
stated, in the Southern and Western courts--cases in which the law of the actual domicil
was adjudged to have altered the native condition and status of the slave, although he
had never actually possessed the status of freedom in that domicil. (Rankin v. Lydia, 2
A. K. M.; Herny v. Decker, Walk., 36; 4 Mart., 385; 1 Misso., 472; Hunter v. Fulcher, 1
Leigh.) I do not impugn the authority of these cases. No evidence is found in the record
to establish the existence of a domicil acquired by the master and slave, either in Illinois
or Minnesota. The master is described as an officer of the army, who was transferred
from one station to another, along the Western frontier, in the line of his duty, and who,
after performing the usual tours of service, returned to Missouri; these slaves returned to
Missouri with him, and had been there for near fifteen years, in that condition, when

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this suit was instituted. But absence, in the performance of military duty, without more,
is a fact of no importance in determining a question of a change of domicil. Questions of
that kind depend upon acts and intentions, and are ascertained from motives, pursuits,
the condition of the family, and fortune of the party, and no change will be inferred,
unless evidence shows that one domicil was abandoned, and there was an intention to
acquire another. (11 L.and Eq., 6; 6 Exch., 217; 6 M. and W., 511; 2 Curt. Ecc. R.,
368.) The cases first cited deny the authority of a foreign law to dissolve relations which
have been legally contracted in the State where the parties are, and have their actual
domicil --relations which were never questioned during their absence from that State --
relations which are consistent with the native capacity and condition of the respective
parties, and with the policy of the State where they reside; but which relations were
inconsistent with the policy or laws of the State or Territory within which they had been
for a time, and from which they had returned, with these relations undisturbed. It is
upon the assumption, that the law of Illinois or Minnesota was indelibly impressed upon
the slave, and its consequences carried into Missouri, that the claim of the plaintiff
depends. The importance of the case entitles the doctrine on which it rests to a careful
examination.

It will be conceded, that in countries where no law or regulation prevails, opposed to


the existence and consequences of slavery, persons who are born in that condition in a
foreign State would not be liberated by the accident of their introgression. The relation
of domestic slavery is recognised in the law of nations, and the interference of the
authorities of one State with the rights of a master belonging to another, without a valid
cause, is a violation of that law. (Wheat. Law of Na., 724; 5 Stats. at Large, 601; Calh.
Sp., 378; Roports of the Com. U. S. and G. B., 187, 238, 241.) The public law of
Europe formerly permitted a master to reclaim his bondsman, within a limited period,
wherever he could find him, and one of the capitularies of Charlemagne abolishes the
rule of prescription. He directs, 'that wheresoever, within the bounds of Italy, either the
runaway slave of the king, or of the church, or of any other man, shall be found by his
master, he shall be restored without any bar or prescription of years; yet upon the
provision that the master be a Frank or German, or of any other nation (foreign;) but if
he be a Lombard or a Roman, he shall acquire or receive his slaves by that law which
has been established from ancient times among them.' Without referring for precedents
abroad, or to the colonial history, for similar instances, the history of the Confederation
and Union affords evidence to attest the existence of this ancient law. In 1783,
Congress directed General Washington to continue his remonstrances to the
commander of the British forces respecting the permitting negroes belonging to the
citizens of these States to leave New York, and to insist upon the discontinuance of
that measure. In 1788, the resident minister of the United States at Madrid was
instructed to obtain from the Spanish Crown orders to its Governors in Louisiana and
Florida, 'to permit and facilitate the apprehension of fugitive slaves from the States,
promising that the States would observe the like conduct respecting fugitives from
Spanish subjects.' The committee that made the report of this resolution consisted of
Hamilton, Madison, and Sedgwick, (2 Hamilton's Works, 473;) and the clause in the
Federal Constitution providing for the restoration of fugitive slaves is a recognition of
this ancient right, and of the principle that a change of place does not effect a change of
condition. The diminution of the power of a master to reclaim his escaping bondsman in

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Europe commenced in the enactment of laws of prescription in favor of privileged


communes.

Bremen, Spire, Worms, Vienna, and Ratisbon, in Germany; Carcassonne, Beziers,


Toulouse, and Paris, in France, acquired privileges on this subject at an early period.

The ordinance of William the Conqueror, that a residence of any of the servile
population of England, for a year and a day, without being claimed, in any city, burgh,
walled town, or castle of the King, should entitle them to perpetual liberty, is a
specimen of these laws.

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